C O N N I E D . D R A X L E R , D E P U T Y D I R E C T O R L A P U B L I C G U A R D I A NL E A H D A V I S , A S S I S T A N T C O U N T Y C O U N S E L , L A C O U N T Y C O U N S E L

PEOPLE V. KENNEBREW

DEMOGRAPHICS

• Nattie Kennebrew • Age 86 at time of referral to Public Guardian• Widowed with no local family• History of being a veteran – received medical care from

VA• History of owning a locksmith company• Charges include murder, attempted murder and assault

with a deadly weapon• At time of referral Mr. Kennebrew is legally blind due to

glaucoma, diagnosed with dementia and suffering from Diabetes and Hypertension. No history of mental illness

CHRONOLOGY OF EVENTS

• 1/28/2009 – Nattie Kennebrew age 83 and suffering from dementia and delusions allegedly shot and killed the apartment maintenance man who entered his apt to fix a faulty garbage disposal. He also attempted to shoot and kill the apartment manager• 7/1/2009 – Arraigned; Doubt raised RE:

competency• 11/23/2009 – Declared Incompetent to Stand Trial

and committed to Patton State Hospital

CHRONOLOGY CONTINUED

• 2/7/2012 – Patton concludes Mr. Kennebrew was unlikely to regain competency. Patton referred case to PG requesting a LPS conservatorship• PG determines Mr. Kennebrew does not meet statutory criteria for

LPS

• 8/23/2012 – Criminal Court refers matter to PG for possible conservatorship• PG notifies court that LPS conservatorship will not be pursued due

to diagnosis and limits on mental health funding and placement

• 10/25/2012 – Patton refers case again to PG, requesting LPS conservatorship

• NOTE – Maximum Commitment Date = November 22, 2012 (Thanksgiving Day)

CHRONOLOGY CONTINUED

• October and November 2012 – Director of Mental Health, PG and CoCo receive inquiries from Board of Supervisors based on requests from DA’s office for intervention and assistance

• 11/7/2012 - Independent Forensic and Neuropsychological evaluation performed at request of PG

• 11/16/2012 – Detailed report to court declining to file LPS conservatorship based on diagnosis, lack of any mental health history, recommendation for placement in SNF and client willing to accept assistance for needs to be met

CHRONOLOGY CONTINUED

• 11/15/2012 – PG served with Notice of Hearing of Conservatorship and Request for Appointment of Probate Conservator• Petition filed by Deputy DA• Petition names Office of the Public Guardian as

Conservator• Hearing set in probate court for December 31, 2012• Mr. Kennebrew not released on 11/22/2012 because of

pending probate conservatorship hearing

CHRONOLOGY CONTINUED

• 12/31/2012 – PG and County Counsel appear in Probate Court. Deputy DA and criminal case Public Defender present. • PG objects to filing of petition and naming Public

Guardian as conservator• Probate Court orders PG to conduct an investigation into

need for Probate Conservatorship• Probate Volunteer Panel attorney appointed for Mr.

Kennebrew to represent his interests in Probate conservatorship petition

CHRONOLOGY CONTINUED

• Investigation - PG finds son and numerous family members. Family had lost contact following crime• Son, Andrew Kennebrew states he will take father and

care for him in Michigan upon release from Patton

• PG reports there is a suitable alternative to filing Probate conservatorship. DA objects• Probate Court orders son, Andrew, to file Probate

Conservatorship in California

CHRONOLOGY CONTINUED

• 4/5/2012 – Probate Court appoints Andrew Kennebrew Conservator of the Person of Nattie Kennebrew• Court authorizes Andrew to take Nattie out of state to

Michigan• Andrew is ordered to show proof of filing of conservatorship in

Michigan• California court inclined to terminate CA conservatorship upon

Michigan order granting conservatorship• Andrew ordered to obtain a doctors evaluation of Ctees

medication and file report in CA• Status hearing set for 10/25/2013 regarding medication,

placement and status of conservatorship in Michigan• DA’s petition to appoint PG is denied with prejudice and PG is

excused from case

CHRONOLOGY CONTINUED

• Probate Court Letters of Conservatorship• Full Medical Powers • Dementia Medications Granted• NO Dementia Placement powers granted• No evidence Nattie needs a locked placement• DA objects strongly – wants Nattie in a locked placement

• Court Response• Thoughtful, extensive oral response regarding role of Probate

conservatorship and the appropriate use of the conservatorship• Tells DA – not appropriate to use probate conservatorship just

because her hands are statutorily tied in the criminal court matter

CHRONOLOGY CONTINUED

• Criminal Court case is continued throughout the pending Probate case.

• Criminal Court Public Defender requests for criminal case to be dismissed is denied repeatedly.

• 4/10/2012 –Criminal court appearances - Notify that Probate conservatorship established. DA issues objections regarding public safety and lack of locked placement• Court orders PG to explain why we are refusing to establish a

conservatorship in order to place him in a setting that will serve his needs and protects the public safety. PG ordered to provide court other options to place Nattie in an environment where he will not pose a danger to public.

CHRONOLOGY CONTINUED

• 5/9/2013 – PG Response to Court’s Inquiry of 4/10/2013• Defined and Reported on the following:• PG• Conservatorships (LPS, Murphy and Probate)• PG Investigations• Filing a Petition for LPS• Dementia Issue• Placement of LPS Conservatees• History of Kennebrew case and conclusion on which

conservatorship is appropriate• Issue of public safety under Probate conservatorship• Response will be the basis of an appeal

CHRONOLOGY CONTINUED

• 5/9/2013 – DA files “Proposed Findings” and Court orders DA to prepare those findings for the minute order. Case continued to 5/15/2013• 5/15/2013 – PG/CoCo file its own Findings and

Order• DA files amended Findings and Order – this orders PG to

file a LPS and Murphy conservatorship (A and B)• Court acts on DA’s Amended Findings and Orders. Court

specifically states PG abused our discretion. PG ordered to file conservatorship within 45 days.

• Court notified that PG will file appeal

APPEAL PROCESS

• 6/20/2013 – File Petition for Writ of Mandate with 2nd Appellate District • Chronology of Events• Request for review• Failure by Trial Court to follow Karriker - Court abused its

discretion• Introduction of Conservatorships• PG properly exercised its discretion • Request for immediate stay pending decision

APPEAL PROCESS CONTINUED

• 7/12/2013 - District Attorney files Opposition to Petition for Writ of Mandate• 7/25/2013 – Appellate Court issues Palma Notice• 8/23/2013 – County Counsel Reply to DA

Opposition• 8/23/2013 – DA objects to the filing of the Palma

Notice• 10/1/2013 – Appellate Court issues OSC to Judge

Shapiro (criminal court judge)• 10/31/2013 – County Counsel Reply to Return to

Petition for Writ of Mandate

APPEALS PROCESS CONTINUED

• 11/20/2013 – Oral Arguments• 12/19/2013 – Writ of Mandate is Denied• 1/3/2014 – County Counsel files Petition for

Rehearing• 1/17/2014 – Appellate Court issues order making

technical changes. Petition for rehearing is denied.• 1/28/2014 – County Counsel Files Petition for

Review with the State Supreme Court• 4/9/2014– Petition for Review Denied.

KENNEBREW DECISION

• Findings• Dementia is a qualifying diagnosis for a LPS and Murphy

conservatorship• PG has lost discretion RE: Murphy Conservatorship. • A court can order the Public Guardian to file a Murphy

conservatorship• Court must find the defendant currently dangerous• PG role is purely ministerial – you are just carrying out the act

ordered by the court to petition and to serve as conservator

• We believe we retain discretion RE: LPS Conservatorship• Karriker case

POTENTIAL IMPACTS FOR LA COUNTY

• Flood gates open – influx of cases?• Need for more State Hospital beds • Criminal court cases handled differently from designated

facilities? • Could potential differences lead to more legal challenges?

• Will Karriker prevail on LPS conservatorship cases if we are challenged by the court?

• Will the DA convince judges to declare someone dangerous just to get the Murphy?

• Modification of Designated Facilities procedures? Can designated facilities send LPS referrals for clients with only a dementia diagnosis because LPS system faster than Probate?

KENNEBREW CASE

• 4/22/2014 Filed Murphy petition WIC 5008 (h)(1)(B)• “Protest” Petition• Similar to a regular Murphy petition• More facts • Discussion on why we don’t agree with order to file

Murphy• Petition states we filed because we were ordered

• Case keeps getting continued for Jury Trial• Probate case continued pending the decision on

the Murphy petition• Next court date – 9/30/2014

POST KENNEBREW

• No flood gates BUT steady number of criminal court orders to investigate• Note LA County has a designated mental health courtroom for

1370, 2970 and 1026 cases but cases can originate from any criminal court

• Most Dept 95 orders state – “Investigate suitability for LPS/Murphy conservatorship.” • Some discretion but court can overrule our decision or order

us to further explain decisions

• Outlying courts either quote Kennebrew or use “initiate conservatorship proceedings” (Karriker)

• Cases refused pre-Kennebrew are coming back through new court ordered investigations

POST KENNEBREW CONTINUED

• Adapting to Kennebrew• Procedures• Protest Petitions• Dementia only cases – If ordered to investigate suitability of

LPS/Murphy we are conducting more joint Probate and LPS investigations (2 deputies) to determine what is the most appropriate conservatorship, including if Probate is more appropriate

• Challenges• No consistency within DA’s office or courts• Problems with documentation from State Hospital regarding GD

or dangerousness• Placement remains a ?• Desire for PG to solve the problems faced by the criminal justice

system

POST KENNEBREW CONTINUED

• Statistics• 0ver 30 cases referred with older adults committing

violent crimes with diagnosis of dementia/TBI/Neurocognitive Disorder

• Conducted over • 3 Murphy petitions filed – 2 are protest petitions• 2 Probate conservatorships filed in lieu of LPS/Murphy• 1 Probate petition filed – order by criminal court handling

misdemeanor charge

PEOPLE V KENNEBREW