One of the most emotionally sensitive areas of litigation is a petition for conservatorship, where concerned family members ask the court to give them power to safeguard someone, while that individual may strongly object to surrendering at least some autonomy.

A recent case highlights the issues involved, and the steps the courts and petitioners may take to ensure the fairness of the process. (Conservatorship of the Person of O.B.)

O.B., a resident of Santa Barbara County when her case came before the court, has autism spectrum disorder. In August of 2017, her mother and older sister asked the probate court to appoint them as her conservators.

People with autism vary widely in the type and severity of the symptoms of the disorder, and a diagnosis of autism does not automatically make an individual a candidate for a limited conservatorship.

Her mother and sister petitioned for limited conservatorship of O.B., saying she was “unable to properly provide for ... her personal needs for physical health, food, clothing, or shelter.”

O.B. was then 18. She had been living with her great-grandmother in Lompoc since she was four years old. Her mother lived in Orange County.

The mother told the court that her daughter needed help making basic decisions and performing daily tasks such as taking her medication, remembering to shower and brush her teeth, and choosing her clothes.

She said the young woman was unable to cook or do laundry, had “behavioral outbursts” in which she yelled and fought, and was dangerously trusting of people she does not know.

A guardian ad litem, appointed by the court to advocate for O.B., testified that he believed the Lompoc school had not given O.B. the education she needed, and that employees there seemed to “do whatever it takes to push [her] out of the school regardless of whether she gets a proper education.”

According to the court file, she repeated the 12th grade, had 312 unexcused absences in one school year, and had been suspended numerous times.

A psychologist testified on behalf of O.B., saying that she was “not a candidate for conservatorship,” was verbal, and “has at least average intelligence.”

Despite her autism, the psychologist said, the young woman “has the potential to live independently with support. She does not require a high level of supervision and decision making by a conservator.”

A county probate investigator met with O.B. to determine whether conservatorship was appropriate. He testified that she was opposed to conservatorship and wanted to continue living with her great-grandmother and attending high school in Lompoc.

He also spoke to the girl’s mother, who said she hoped to move O.B. to Orange County and have her go to school there.

The investigator said he did not “see any ... way that the conservatorship would benefit [O.B.] at this point,” and that a move to Orange County would cause her to “experience trauma.”

The probate court ruled that O.B. was unable to take care of her needs for food, clothing, shelter and physical health, and that her treatment at high school had been “a failure of the education system.”

It issued an order establishing a limited conservatorship over O.B., and appointed her mother and older sister as conservators.

Attorneys for the young woman appealed.

The appellate court noted that a limited conservatorship for a developmentally disabled adult “may be utilized only as necessary to promote and protect the well-being of the individual,” and should be “ordered only to the extent necessitated by the individual’s proven mental and adaptive limitations.”

The goal of the conservatorship, it said, should be “to encourage the development of maximum self-reliance and independence of the individual.”

The conservatee is not to be presumed incompetent, and retains all legal and civil rights, except in areas affected by the court order.

Attorneys for O.B. had objected to the decision by the probate court to give more weight to testimony of the mother and experts who favored the conservatorship than to the two experts who felt it was not in her best interests.

They also argued that the probate judge erred in taking into account his own observations of O.B. in the 10 months of hearings.

The justices said that the mother, who was in almost-daily contact with her daughter over more than 10 years, could reasonably be presumed to know her better than experts who had only limited contact with O.B.

They also said that “the trial court may appropriately take its personal observations into account” when the judge has a sound basis for those observations.

The justices affirmed the probate court’s order of conservatorship, and ordered the parties to bear their own costs on appeal.

By Stefan O’Grady