For some mentally ill defendants, alternative sentencingoptions aren’t available, they might not be eligible for court ordered treatment under Laura’s Lawor the treatment failed, or perhaps they have been in a repetitive cycle of Penal Code section 1368 mental incompetencytreatment.  Whatever the failures of the justice system to adequately address the mentally ill defendant, the real effects on the defendant, and often his or her family, can be overwhelming.

In California, persons with severe psychiatric disorders may be placed under a mental health conservatorship. Commonly called a LPS Conservatorship (Lanterman Petris Short Act, codified at Welfare & Institutions Code, sections 5000 et seq.), this type of conservatorship is designed to force certain mentally ill persons into treatment.  While this treatment is usually in a facility, it may be outpatient treatment and/or medications. The treatment is determined and directed by the conservator after court approval. The statutory purpose of an LPS Conservatorship is “toprovide individualized treatment, supervision, and placement [of a severely mentally ill adult.” (Welfare & Institutions Code §5150.) The process of obtaining an LPS Conservatorship is not easy but for the family of a person who is severely mentally ill and in and out of the criminal justice system due to the mental illness, this conservatorship may provide relief

While the LPS Conservatorship may be the best alternative for the family of mentally ill individuals, the family or, for that matter, any private person cannot start a LPS Conservatorship. However, after the conservatorship is ordered by the court, a family member (or other appointed individual) can be the conservator.  An LPS Conservatorship can only be requested to the county Public Guardian Office by a mental health facility professional, in most cases after the mentally ill individual has been ordered to evaluation pursuant to Welfare & Institutions Code sections 5150 and 5250.

Because an LPS Conservatorship means the state (via the court) temporarily takes away the rights of the conservatee, only adults who are “gravely disabled” due to certain mental disorders may be subject to the conservatorship.  A person is gravely disabled if he or she is unable to provide for his or her own food, clothing, or shelter.  Homelessness does not necessarily meet this requirement if the person is capable of seeking shelter, and is able to procure food, even if that is through a soup kitchen or even “dumpster diving.” This can be a difficult showing; basically a “gravely disabled” person would be one who has nowhere to go and is not capable of figuring that out and would not feed him- or herself but through the initiation of others.  Furthermore, just because a person acts bizarrely—even if the person is having hallucinations or is hearing voices—it is not enough. The person must be unable to figure out a way to care for him- or herself and must have no one who is providing that care.  The person must also be unwilling or unable to take prescribed medication for the mental disorder without supervision.

An LPS Conservatorship can only be requested for those diagnosed with Diagnostic and Statistical Manual (DSM) disorders including schizophrenia, clinical depression and bi-polar disorder. The LPS Conservatorship must go through the court process and that can be somewhat daunting.

Here is how it might work:

You have a son, who due to his severe bipolar disorder, has been living on the streets. He refuses any shelter from family or social services. He has refused to take his medications and consequently has had episodes where he has physically threatened others and has been arrested several times for this behavior. He only eats when someone puts food in front of him and he has no care about being appropriately clothed for the season.

After one arrest for violently threatening a family member, he is placed on a “5150 hold” (an involuntary commitment to a psychiatric facility with a statutory maximum three days). He is evaluated in the facility and the treating professional requests a “5250 hold” (an additional 14 day hold).  During that hold the treating psychiatrist requests an LPS Conservatorship investigation by the County Public Guardian Office. If the Public Guardian Office determines that your son has been diagnosed with bio-polar disorder and is gravely disabled by the disorder, the Public Guardian will file the petition for the conservatorship along with the Public Guardian’s report of findings with the court.

The court will ultimately decide whether to establish an LPS Conservatorship and who will be the conservator. Although you cannot initiate this process, you can ask the Public Guardian Office to initiate the process. In most cases, you are also allowed to be involved in the process and attend the court hearings; this is always true if the Public Guardian has recommended to the court that you be appointed the conservator.

If the court grants the conservatorship, you are then able to direct the treatment for your son. That will include— and often does— his involuntary commitment to a treatment facility. As the conservator, you have the legal duty to only take action that is in the best interests of your son.  The conservatorship last for one year after which time you may petition for renewal of the conservatorship.

There are no easy fixes for the seriously mentally ill offender. For the family of these individuals, relief often seems unobtainable. But there are statutory procedures that can help. The LPS Conservatorship is reserved for the most severe cases but forcing a loved one into psychiatric treatment for a year or more may produce positive results. It is not easy or cheap, but if you can relieve your loved one’s suffering —and your own—it is certainly worth the effort.

Orange County criminal defense attorney has been assisting the families of mentally ill offenders for over 25 years. If you have a child or loved one who may benefit from court-ordered treatment, feel free to contact Attorney Weinberg for a free consultation regarding your options. He may be reached at (949) 474-8008 or by email at