Filed 7/30/15 Conservatorship of the Person of D.B. CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


Conservatorship of the Person of D.B.


DEPARTMENT OF AGING & ADULT
SERVICES PUBLIC CONSERVATOR,
         Petitioner and Respondent,                                  A143412
v.
                                                                     (San Francisco County
D.B.,                                                                Super. Ct. No. PMH-09-021898)
         Objector and Appellant.


         In 2009, the Department of Aging & Adult Services (Department) was appointed
conservator of the person of D.B. pursuant to the Lanterman-Petris-Short (LPS) Act
(Welf. & Inst. Code, § 5000 et seq.).1 In October 2014, at the most recent annual hearing
to reestablish the conservatorship, the trial court adopted a “settlement,” reestablishing
the conservatorship, reached by D.B.’s appointed counsel and the Department. The court
did not conduct a formal hearing to determine whether D.B. remained gravely disabled
and, if so, what disabilities should be imposed on him and what powers the conservator
should have. Neither did the court provide D.B. the advisements required by Probate
Code section 1828 or consult with D.B. concerning the conservatorship as also required



         1
         Further statutory citations are to the Welfare and Institutions Code, unless
indicated otherwise.


                                                             1
by that section. Finally, there is no indication in the record that D.B. agreed to the
settlement reached by his appointed counsel.
       D.B. maintains on appeal that he was deprived of his procedural due process rights
at the reestablishment proceeding. On the facts of this case, we agree and reverse.
                                     BACKGROUND
       In 2006, pursuant to Penal Code section 1370, D.B. was admitted to Napa State
Hospital having been found incompetent to stand trial on criminal charges that are not
relevant to the issues presented in this appeal. D.B.’s maximum term of commitment was
set to expire on March 8, 2009. On February 2, 2009, the trial court determined there
was no likelihood that D.B. would regain competence to stand trial and directed the
Department to initiate LPS conservatorship proceedings.
       On March 5, 2009, the Department filed a petition alleging that D.B. was gravely
disabled within the meaning of section 5008, subdivision (h). A conservatorship
investigation report stated that D.B. had been diagnosed with “Schizophrenia, Paranoid
Type” and alcohol dependence. On August 27, 2009, the trial court granted the petition
and appointed the Department as the conservator of D.B.’s person. The court annually
reappointed the Department as D.B.’s conservator on August 12, 2010, August 11, 2011,
August 2, 2012, and October 3, 2013.
       On August 14, 2014, the Department filed the petition at issue in this case seeking
reappointment as D.B.’s conservator for an additional year. A physician’s statement,
filed on September 23, 2014, and signed by two medical doctors, attested that D.B.
suffered from “SCHIZOPHRENIA, UNDIFFERENTIATED.” As “Specific Reasons for
Grave Disability (food, clothing, shelter)” the statement asserted: “[D.B.’s] disorder of
logical thinking[,] universal paranoid suspicion and accompanying anxiety prevents
discussion of the issue from needs to actions required to provide food, clothing and
shelter. He is unable to engage in conversations, answering questions or participating in
hearings or other required involvements regarding these issues.”
       On October 2, 2014, the trial court held a hearing on the petition. At the outset of
the hearing, the court stated: “Prior to the initiation of testimony, the parties were able to


                                              2
work out a settlement, and I’d like to put it on the record with the request of the parties
that if I make a mistake, I’d be informed so that we can correct it. [¶] The settlement is
[D.B.] agrees to the renewal of the LPS conservatorship with a right to refuse or accept
medication, and that there will be a placement report on the date that we will set for the
possibility of transfer from Napa to another locked facility. It seems that [D.B.] was able
to acquire evidence of his social security card, which enables the placement team to have
more options in seeking alternative placement, if that’s appropriate.” The court asked:
“Is that an accurate assessment of the settlement?” The assistant district attorney
representing the Department affirmed that it was, but D.B.’s counsel made no reply. The
court stated: “We’ll put it on the record as follows: The petition for renewal of the LPS
conservatorship is granted. The conservatee retains the right to consent or refuse
medication. There will be a placement report outlining the possibility of a transfer to
another locked facility.”
       The court then set January 8, 2015, for a placement report. D.B.’s counsel
submitted the matter “on the report that the Court has as part and parcel of the Court’s
determination of the LPS renewal.” The clerk asked whether there would be a hearing
scheduled to consider the placement report, and D.B.’s counsel suggested the matter be
taken off calendar but then said: “One moment, please. My client may have another
question.” There was then an off-record discussion after which the court stated: “[D.B.]
wants the Court to acknowledge that his passport, his social security card and his driver’s
license were stolen, but he has, through the efforts of himself and those who are assisting
him, been able to recover that information. [¶] He has received a letter from SSI
requesting some back payments, which he contests, and he is in the process of making
that contest. He’s not—that matter will not be decided in this court because I don’t have
jurisdiction, but the Court wishes to congratulate [D.B.] on his untiring efforts to recover
what was stolen from him. We’re glad you’re able to do so successfully. Thank you,
sir.” The proceedings then concluded.
       On October 2, 2014, the trial court filed an order reappointing the Department as
conservator of D.B.’s person. The order specified the powers of the conservator and the


                                              3
disabilities imposed on D.B. (as incorporated from “the Conservator’s Investigation
Report,” which is not part of the record on appeal). The order noted that a placement
report was due on January 8, 2015.
       D.B. timely filed a notice of appeal on October 23, 2014.
                                      DISCUSSION
       The issue before us is whether the trial court’s grant of the petition reestablishing
the conservatorship deprived D.B. of procedural due process because the court’s order
was based on a stipulated settlement, the court did not obtain D.B.’s express consent to
the settlement on the record and the court did not comply with Probate Code section
1828. These are legal issues that we review de novo. (Conservatorship of Christopher A.
(2006) 139 Cal.App.4th 604, 610 (Christopher A.)
                                              I.
                                     Legal Background
A.     The LPS Act
       In Conservatorship of John L. (2010) 48 Cal.4th 131 (John L.), the Supreme Court
provided background about the LPS Act: “The LPS Act governs the involuntary
detention, evaluation, and treatment of persons who, as a result of mental disorder, are
dangerous or gravely disabled. (§ 5150 et seq.) The Act authorizes the superior court to
appoint a conservator of the person for one who is determined to be gravely disabled (§
5350 et seq.), so that he or she may receive individualized treatment, supervision, and
placement (§ 5350.1). As defined by the Act, a person is ‘gravely disabled’ if, as a result
of a mental disorder, the person ‘is unable to provide for his or her basic personal needs
for food, clothing, or shelter.’ (§ 5008, subd. (h)(1)(A).)
       “Integral to the LPS Act is its procedure for ascertaining whether a
conservatorship of the person should be established. Each county is required to designate
an agency to undertake an investigation to aid the court in determining whether a
conservatorship is appropriate (§ 5351), and the investigating officer must submit a
comprehensive written report to the court prior to the conservatorship hearing (§ 5354).
The written report must include ‘all relevant aspects of the person’s medical,


                                              4
psychological, financial, family, vocational and social condition, and information
obtained from the person’s family members, close friends, social worker or principal
therapist.’ (Ibid.) It must also state whether the investigator recommends a
conservatorship and, if not, identify all available alternatives. (Ibid.) When a
conservatorship is recommended, the report must make recommendations concerning a
suitable conservator, the powers and duties to be granted and imposed upon the
conservator, the legal disabilities to be imposed upon the proposed conservatee, and the
appropriate placement. (§§ 5355, 5356.)
       “The procedures for establishing a conservatorship include a number of
requirements pertaining to notice, hearing and trial rights, and other matters.
Specifically, the petition for appointment of a conservator of the person and the citation
for conservatorship must be served upon the proposed conservatee at least 15 days before
the scheduled hearing date, and the proposed conservatee must be given notice of the
privileges and rights subject to deprivation as part of the conservatorship. (§ 5350; Prob.
Code, §§ 1823, 1824.)[2] A hearing must be held within 30 days of the date of the
petition, and the court must ‘appoint the public defender or other attorney for the . . .
proposed conservatee within five days after the date of the petition.’ (§ 5365.) The
proposed conservatee ‘shall have the right to demand a court or jury trial on the issue
whether he or she is gravely disabled,’ but must do so before or within five days
following the hearing on the conservatorship petition. (§ 5350, subd. (d).) The party
seeking imposition of the conservatorship must prove the proposed conservatee’s grave
disability beyond a reasonable doubt, and a jury verdict finding such disability must be

       2
         Section 5350 specifies that the “procedure for establishing, administering, and
terminating a conservatorship under this chapter shall be the same as that provided in
Division 4 (commencing with Section 1400) of the Probate Code,” followed by listed
exceptions that are not implicated by the issues before us. Division 4 of the Probate Code
embodies the Guardianship-Conservatorship Law, a separate statutory scheme governing
the appointment of conservators of the person for “adults who for any reason are
incapable of taking care of themselves.” (38 Cal.Jur.3d (2006) Incompetent Persons, § 3,
p. 180.) Accordingly, LPS conservatorship proceedings are governed not only by the
Welfare and Institutions Code, but also by provisions in the Probate Code.


                                              5
unanimous. (Conservatorship of Roulet (1979) 23 Cal.3d 219, 235.) An LPS
conservatorship automatically terminates after one year, and reappointment of the
conservator must be sought by petition. (§ 5361.)” (John L., supra, 48 Cal.4th at pp.
142-143.) Whether or not the conservatee demands a jury trial on the issue of grave
disability, the conservatee has a “right to a court hearing on the issues of placement,
disabilities [imposed on the conservatee], and powers of the conservator.” (Christopher
A., supra, 139 Cal.App.4th at p. 612.)
       Among the procedural requirements of an LPS conservatorship proceeding is
Probate Code section 1828, providing that “prior to the establishment of a
conservatorship [and assuming the proposed conservatee’s presence has not been
excused], the court shall inform the proposed conservatee” of, among other things, “the
nature and purpose of the proceeding”; the effect the proceeding might have on the
conservatee’s basic rights; the potential that the conservatee might be disqualified from
voting; the identity of the proposed conservator; and the right to oppose the proceeding
and have the matter of the establishment of the conservatorship tried by jury. (Prob.
Code, § 1828, subd. (a).) After the court provides this information, “the court shall
consult the proposed conservatee to determine the proposed conservatee’s opinion”
concerning the establishment of the conservatorship and the appointment of the proposed
conservator. (Id., § 1828, subd. (b).)
       “[C]onservatees are not, by reason of their conservatorship, automatically
considered incompetent, and their ability to knowingly and intelligently waive their
hearing rights is a question of fact . . . .” (Conservatorship of Moore (1986) 185
Cal.App.3d 718, 732 (Moore).)
B.     Due Process
       “ ‘ “The question of whether due process has obtained can only be answered by
scrutinizing the circumstances in which the deprivatory action arose. [Citations.]
‘Because of the broad spectrum of concerns to which the term must apply, flexibility is
necessary to gear the process to the particular need; the quantum and quality of the
process due in a particular situation depend upon the need to serve the purpose of


                                             6
minimizing the risk of error. [Citation.]’ ” [Citation.]’ [Citation.] In conservatorship
cases, we balance three factors to determine whether a particular procedure or absence of
a procedure violates due process: the private interests at stake, the state or public
interests, and the risk that the procedure or its absence will lead to erroneous
decisions.” ’ ” (John L., supra, 48 Cal.4th at p. 150.)
       Because a person found to be gravely disabled may be involuntarily confined for
up to one year, and the conservatorship may be extended for additional one-year periods
so long as the person remains gravely disabled, “[t]here can be no doubt that ‘[t]he liberty
interests at stake in [an LPS] conservatorship proceeding are significant.’ ” (John L.,
supra, 48 Cal.4th at p. 150, quoting Conservatorship of Ben. C. (2007) 40 Cal.4th 529,
540 (Ben C.).) “Likewise, there is no question that the public interests promoted by the
LPS Act are substantial.” (John L., at p. 150.) Because the private interests implicated in
an LPS conservatorship are significant, “several layers of important protections” have
been built into the system (Ben C., at p. 540), including the provisions of Probate Code
section 1828, to “vigilantly guard[ ] against erroneous conclusions” in such proceedings.
(Id. at p. 542.)
       A due process challenge to an LPS conservatorship proceeding was considered in
Christopher A. In that case, the conservatee demanded a jury trial on the issue of whether
he was gravely disabled. (Christopher A., supra, 139 Cal.App.4th at p. 608.) The jury
returned a unanimous verdict of grave disability. (Id. at p. 609.) Outside the presence of
the jury, on the same day as the jury trial, a doctor testified on the issues of least
restrictive placement, disabilities and proposed powers of the conservator. (Ibid.)
“Before the conclusion of the trial, [the public conservator] prepared and submitted to the
court and Short [Christopher’s counsel] a proposed judgment. After the jury returned its
verdict, Short informed the court the proposed judgment required clerical changes but he
anticipated reaching an agreement with [the public conservator] on the terms of the
judgment. The proposed judgment was approved by Short and subsequently signed by
the court. The court did not obtain on the record Christopher’s consent regarding the



                                               7
contents and consequences of the judgment that had been approved by Short.” (Ibid., fn.
omitted.)
       On appeal, Christopher contended “the court erred by accepting the stipulated
judgment submitted by the attorneys without first consulting him on the consequences of
the agreement.” (Christopher A., supra, 139 Cal.App.4th at p. 610.) The Court of
Appeal observed: “By accepting the stipulated judgment, the court allowed Short to
waive Christopher’s right to a court hearing on the issues of placement, disabilities, and
powers of the conservator. The role of an attorney in litigation is to ‘[protect] the client’s
rights and [achieve] the client’s fundamental goals.’ [Citation.] In carrying out this duty,
the attorney has the general authority to stipulate to procedural matters that may ‘ “be
necessary or expedient for the advancement of [the] client’s interest[s].” ’ [Citation.]
However, the attorney may not, without the consent of his or her client, enter into an
agreement that ‘impair[s] the client’s substantial rights or the cause of action itself.’
[Citation.] Here, the only evidence presented on the issues of placement, disability, and
conservator powers was the testimony of [a doctor] given during a separate court
evidentiary hearing on the day of the trial. After the jury returned its verdict, the
discussion of these issues was limited to the status of a proposed judgment submitted by
[the public conservator]. . . . The court addressed Christopher only twice: when he asked
to make a statement to the court and it advised him to discuss concerns first with his
attorney; and, finally, to wish him luck. Three weeks later the proposed judgment, which
was approved by Short, was submitted to and signed by the court. Nothing in the record
shows Christopher consented to the terms of the proposed judgment regarding placement,
disabilities, and conservator powers.” (Id. at pp. 612-613, fn. omitted.)
       The Christopher A. court concluded that “a stipulated judgment approved by the
conservatee’s attorney and adopted by the court after no formal hearing on the issues of
placement, disabilities, and powers of the conservator is not a constitutionally sound
safeguard against error. We reach this conclusion even though both the investigator’s
report and the testimony of [the doctor] tended to support the conclusions in the
judgment. A proposed conservatee is at risk of substantial deprivation of his or her


                                               8
liberty interests for at least a period of one year. [Citation.] To allow the conservatee’s
attorney to waive the right to a hearing and agree to the extent of the deprivation without
the express consent of the conservatee is contrary to the principles of procedural due
process. A waiver of the right to a hearing on these issues eliminates a procedural
safeguard already in place. Therefore, we conclude that before accepting a stipulated
judgment on placement, disabilities, and conservator powers, the court on the record must
consult with the conservatee to instruct him or her on the consequences of the stipulation
and obtain the conservatee’s express consent to the stipulation on those issues.”
(Christopher A., supra, 139 Cal.App.4th at p. 613, fn. omitted.)
       A conservatee’s counsel may waive the right to a jury trial on the issue of grave
disability, so long as there is no objection by the proposed conservatee (Conservatorship
of Maldonado (1985) 173 Cal.App.3d 144, 148 (Maldonado) [relying on Code Civ. Proc.,
§ 283, providing that an attorney has authority “[t]o bind his client in any of the steps of
an action or proceeding by his agreement . . . entered upon the minutes of the Court”]),
but with regard to other waivers of rights due to a conservatee in LPS conservatorship
proceedings, we find no case concluding that the requirements of procedural due process
were met without at least a representation to the court that the conservatee agreed to the
waiver. In Moore, counsel waived a hearing on the reestablishment of conservatorship
petition, the trial court reestablished the conservatorship, and the Court of Appeal
affirmed, but the waiver was made in a sworn declaration by counsel that he
“ ‘ascertained that [conservatee] does not oppose the reestablishment.’ ” (Moore, supra,
185 Cal.App.3d at pp. 724, 733.) In Conservatorship of Tian L. (2007) 149 Cal.App.4th
1022 (Tian L.), conservatee’s counsel waived conservatee’s appearance and stipulated to
the physician’s report and qualifications, the trial court reestablished the conservatorship,
and the Court of Appeal affirmed. (Id. at pp. 1027, 1033.) However, the waiver was
made in a sworn statement attesting that counsel had personally visited the conservatee
and that conservatee had knowingly and willingly consented to reestablishment of the
conservatorship by stipulation and without a formal court hearing. (Id. at p. 1027.)
Conservatorship of Deirdre B. (2010) 180 Cal.App.4th 1306 (Deirdre B.) involved a


                                              9
waiver similar to that in Tian L., accompanied by a similar sworn statement by counsel.
(Id. at p. 1310.)
        In John L., conservatee’s counsel asked the trial court to excuse conservatee’s
presence, informing the court that he had met with conservatee and discussed the
conservatorship and that conservatee did not wish to contest the conservatorship or be
present in court. (John L., supra, 48 Cal.4th at p. 141.) The John L. court first
considered whether conservatee’s waiver of his presence at the proceeding through
counsel was permitted by the LPS Act and the incorporated provisions of the Probate
Code.3 (Id. at pp. 143-149.) The court concluded that the Act, in combination with Code
of Civil Procedure section 283, which permits an attorney to make binding
representations in court on behalf of her client, allows such a waiver. (Id. at pp. 146-
149.)
        Having concluded that no statutory violation occurred, the court proceeded to
consider whether the conservatee had been deprived of procedural due process. (John L.,
supra, 48 Cal.4th at pp. 149-157.) The court relied heavily on Moore and, like Moore,
concluded that no due process violation had occurred: “Moore emphasized the
significance of a conservatee’s representation by counsel in determining the validity of
the conservatee’s waiver of a hearing or trial: ‘ “When counsel is present, a voluntary
and intelligent waiver of known rights may properly be inferred from the record, without
a specific on-the-record showing as to each right.” ’ ” (Id. at pp. 152-154, 156.)
However, the John L. court also relied on the fact that the trial court had adhered to the

        3
         Probate Code section 1825, subdivision (a), provides that “[t]he proposed
conservatee shall be produced” at the hearing to establish a conservatorship, subject to
three exceptions. Subdivision (a)(3) provides that the conservatee may be excused from
attending if he expressly informs the “court investigator” that he is unwilling to attend
and does not contest the conservatorship or oppose the proposed conservator. Probate
Code section 1826, subdivision (a)(1), requires the court investigator to interview the
proposed probate conservatee personally, but the LPS Act specifies that Probate Code
section 1826 does not apply to LPS conservatorships (§ 5350, subd. (f)), in which an
agency-designated official is charged with conducting an investigation instead of an
investigator appointed by the court (see §§ 5351, 5354, 5356).


                                             10
LPS Act’s due process protections: “When we consider the combination of due process
protections that have been built or read into the LPS Act, . . . we have no difficulty
concluding that these numerous checks sufficiently guard against the risk of erroneous
conservatorship decisions, without the need to impose additional waiver-related
requirements.” (Id. at p. 154.) The court stressed that its conclusion was “consistent with
decisions generally recognizing that, even though certain rights implicated in civil
proceedings are substantial, they may be waived by an attorney with the client’s express
consent.” (Id. at p. 156, citing Christopher A. among other cases.) The court also noted
that its conclusion “also finds support in prior decisions acknowledging that, in the
absence of any contrary indication, the superior court may assume that an attorney is
competent and fully communicates with the proposed conservatee about the entire
proceeding.” (Id. at p. 156.)
                                             II.
                           D.B. Was Not Afforded Due Process.
       At the hearing to reestablish the conservatorship in this case, the court at the outset
announced that a settlement had been reached and stated the terms. Counsel for the
Department (an assistant district attorney) and counsel for D.B. were present, as was D.B.
When the court inquired whether its statement of the terms accurately reflected the
settlement, only the Department’s counsel responded. The court made no further inquiry
either to D.B. or his counsel to ensure that the settlement was accurately stated, much less
that D.B. knew, understood and agreed to its terms, including the implied waiver of a
hearing on the issues of whether he remained gravely disabled, disabilities to be imposed
and powers of the conservator. On this record, we cannot conclude that D.B. was
afforded due process.
       All of the leading cases that have found no due process violation in the waiver of
fundamental rights by a conservatee’s counsel differ from this case in two important
respects, both of which are evident when we compare D.B.’s case with that of John L.
First, and most importantly, because D.B. was present at the hearing, the waiver here
occurred in the face of a violation of Probate Code section 1828, one of the checks


                                             11
implemented to guard against the risk of erroneous conservatorship decisions, but John L.
did not involve a statutory violation. Second, unlike John L., there was no representation
by D.B.’s counsel that the stipulated settlement was in accord with D.B.’s wishes.
Because of these differences we conclude that John L.’s holding that no due process
violation occurred does not control in this case.
       We find no case in which a court concluded that a waiver of fundamental rights
did not violate due process when a statutory protection implemented to guard against the
risk of erroneous conservatorship decisions had been ignored. No such statutory
violation occurred in John L., Moore, Tian L., Maldonado or Deirdre B. In
Conservatorship of Mary K. (1991) 234 Cal.App.3d 265 (Mary K.), counsel waived the
right to a jury trial and the Probate Code section 1828 advisements and the court found no
due process violation, providing authority for the waiver of section 1828 rights. (Id. at
p. 269.) However, in D.B.’s case there was no such waiver, and in Mary K. the
conservatee testified at the bench trial and clearly stated her views about the
reestablishment of conservatorship. (Id. at pp. 268-269.)
       On the other hand, in the two cases we find in which there was a violation of
statutory protections implemented to guard against the risk of erroneous conservatorship
decisions—Christopher A. and Conservatorship of Benvenuto (1986) 180 Cal.App.3d
1030 (Benvenuto)—the court concluded the conservatees had been deprived of due
process. In Conservatorship of Benvenuto (1986) 180 Cal.App.3d 1030 (Benvenuto), the
court reversed reappointment of a conservator because the conservatee had not been
advised of his right to a jury trial prior to the hearing (as required by section 5362) and
there was no on-the-record waiver of that right. (Id. at pp. 1037-1039.) The Benvenuto
court also noted that the trial court had failed to satisfy the requirements of Probate Code
section 1828. (Id. at p. 1038.)




                                             12
       Similarly, with the exception of Maldonado,4 we find no case in which the court
rejected a due process challenge to a waiver of rights by conservatee’s counsel without
some representation that counsel had communicated with the conservatee and the waiver
was consonant with the conservatee’s wishes. The waivers in Moore, Tian L. and
Deirdre B. were accompanied by sworn statements by counsel. The waiver in John L.
was accompanied by counsel’s representation on the record that he had met with the
conservatee and the waiver was in accord with the conservatee’s wishes. The waiver in
Mary K. was accompanied by a similar representation. (Mary K., supra, 234 Cal.App.3d
at p. 269.)
       In contrast, here there was no representation by counsel that he had consulted with
D.B. or that D.B. was in agreement with the proposed settlement. Such was the case in
Christopher A., cited by John L. without criticism, and which we are unable to
distinguish from D.B.’s case in any material respect. In Christopher A., the settlement
agreed to by the attorneys constituted a waiver of Christopher’s right to a court hearing
on the issues of placement, disabilities, and powers of the conservator. In D.B.’s case,
the settlement agreed to by the attorneys constituted an implied waiver of D.B.’s right to
a court hearing on disabilities and powers of the conservator as well as on the
fundamental issue of whether D.B. remains gravely disabled. In both cases, the court
failed to adhere to the requirements of Probate Code section 1828.5 In Christopher A. the

       4
           Maldonado concerned the express waiver of a right to a jury trial, which in the
case of conservatorship proceedings is a matter of statutory, not constitutional, right.
(Maldonado, supra, 173 Cal.App.3d at pp. 146-148.) In D.B.’s case, the waiver was not
express—nor was it in Benvenuto, and the court found that to distinguish the case from
Maldonado. (Benvenuto, supra, 180 Cal.App.3d at p. 1038.) (Here, counsel for the
Department acknowledged at oral argument, it is “difficult to have implied express
consent.”) Moreover, the implied waiver in D.B.’s case was of the right to any hearing at
all, a right far more fundamental than whether a jury or the court would consider the issue
of grave disability.
       5
         The requirements of Probate Code section 1828 are not onerous. The
advisement and consultation requirements of that section, coupled with the mandate that
the conservatee be present except in certain circumstances (see Prob. Code, § 1825),
serve the dual purpose of ensuring that the proposed conservatee is informed of her rights

                                            13
court did not address Christopher in a meaningful way and in this case the court only
acknowledged an off-the-record discussion related to D.B.’s reacquisition of certain
personal documents. In neither case is there any indication in the record that the
conservatee consented to the judgment negotiated by the attorneys and adopted by the
court.
         The Department’s effort to distinguish this case from Christopher A. is
unconvincing. It argues: “Contrary to Christopher A., the instant matter is not an appeal
related to the initial finding of a grave disability as the result of a mental illness. Here,
that finding was made six years ago when [D.B.] was first conserved. [Citation.] The
instant matter is, rather, an appeal of the fifth annual renewal of [D.B.’s]
conservatorship.” That Christopher A. concerned the initial establishment of a
conservatorship and this case concerns the reestablishment of a conservatorship is
irrelevant to our analysis. Nothing in the LPS Act implies that the rights of a conservatee
are any less at the reestablishment of a conservatorship than at the original establishment.
Nor does anything in the Act imply that lesser procedural requirements apply at
reestablishment than at original establishment. (See Benvenuto, supra, 180 Cal.App.3d at
p. 1038 [noting that Probate Code section 1828 advisements are applicable in
proceedings to reestablish an LPS conservatorship].) At any reestablishment of
conservatorship proceeding, the conservatee is entitled to a hearing or jury trial
concerning whether he or she remains gravely disabled and a hearing on placement,
disabilities, and powers of the conservator. A stipulated settlement waives those rights in
a reestablishment proceeding no less than it does in an initial establishment of a
conservatorship. Both initial establishment and reestablishment of a conservatorship
involve deprivation of the conservatee’s liberty for at least one year.
         The Department further attempts to distinguish this case from Christopher A. as
follows: “Also contrary to Christopher A., [D.B.] was present in court when the

and may, if willing and able, meaningfully participate in the process that will determine
whether and how she is conserved. In other words, it ensures that the conservatee will
not be marginalized by counsel and the court.


                                              14
commissioner made his order in the instant matter, and the order was made on the record
when the case was scheduled for hearing, not three weeks later, off the record, and
outside the presence of the conservatee.” We fail to see how this makes a difference.
The deprivation found by the Christopher A. court was the approval of a stipulated
judgment without the consent of the conservatee obtained on the record. That is exactly
what happened here. The Department would have us regard D.B.’s silence as implied
approval of the settlement outlined before him by the court, but we are not prepared to do
so here, where the court failed to satisfy the requirements of Probate Code 1828 by
providing advisements to the conservatee and “consult[ing]” with the conservatee. When
a proposed conservatee has not been advised by the court about the nature of the
proceedings and the rights to which he or she is entitled, as required by Probate Code
section 1828, the conservatee’s silence cannot be presumed to signal acquiescence.
       Finally, the Department argues that D.B. forfeited appeal on the issue of the
court’s failure to obtain his consent on the record by failing to object to the settlement. In
general, to preserve an issue for appeal, an objection made on specific grounds must be
made in the trial court in order to afford the opposing party or the court an opportunity to
cure the defect. (People v. Partida (2005) 37 Cal.4th 428, 433-434.) As with the
meaning we attach to D.B.’s silence, we are not prepared to apply the general rule of
forfeiture in this case. The conservatee’s failure to object to a settlement, agreed to by his
appointed counsel without a representation that conservatee was advised of his or her
rights and agreed to the settlement, does not forfeit the issue on appeal when the court
itself fails to adhere to a statutory provision that guards against the risk of erroneous
conservatorship decisions.
       What the case law teaches us is that a proposed conservatee can waive his or her
rights to procedures that afford due process (such as jury trial or other hearing concerning
whether he or she is gravely disabled), but that such a waiver requires some indicia that it
was knowingly made by the proposed conservatee. The statutory requirements for
advisement and consultation by the court provide such indicia, as does counsel’s



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statement to the court that the conservatee was advised and consented to the waiver.
Here, we have neither. Accordingly, we reverse.
                                    DISPOSITION
      The order reappointing the conservator is reversed.




                                                STEWART, J.



We concur.




KLINE, P.J.




MILLER, J.




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