California Civil Jury Instructions (CACI) (2017)

4007. Third Party Assistance

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4007.Third Party Assistance
A person is not “gravely disabled” if [he/she] can survive safely with the
help of third party assistance. Third party assistance is the aid of
family, friends, or others who are responsible, willing, and able to help
provide for the person’s basic needs for food, clothing, or shelter.
You must not consider offers by family, friends, or others unless they
[have testified to/stated specifically in writing] their willingness and
ability to help provide [name of respondent] with food, clothing, or
shelter. Well-intended offers of assistance are not sufficient unless they
will ensure the person can survive safely.
[Assistance provided by a correctional facility does not constitute third
party assistance.]
New June 2005
Sources and Authority
• Help of Family or Friends. Welfare and Institutions Code section 5350(e).
• “[A] person is not ‘gravely disabled’ within the meaning of section 5008,
subdivision (h)(1) if he or she is capable of surviving safely in freedom with
the help of willing and responsible family members, friends or third parties.”
(Conservatorship of Davis (1981) 124 Cal.App.3d 313, 321 [177 Cal.Rptr.
369].)
• “As we view the broad purpose of the LPS Act, imposition of a conservatorship
should be made only in situations where it is truly necessary. To accomplish
this purpose evidence of the availability of third party assistance must be
considered.” (Conservatorship of Early (1983) 35 Cal.3d 244, 253 [197
Cal.Rptr. 539, 673 P.2d 209].)
• “The California Supreme Court in Conservatorship of Early . . . concluded
although a person might be gravely disabled if left to his or her own devices,
he or she may be able to function successfully in freedom with the support and
assistance of family and friends. The court recognized almost everyone depends
to a greater or lesser extent upon others in order to survive in our complex
society.” (Conservatorship of Jones (1989) 208 Cal.App.3d 292, 299 [256
Cal.Rptr. 415].)
• “In Conservatorship of Early . . . the Supreme Court held that it was error for
the trial court to refuse to admit evidence of and to fail to instruct on the
‘availability of assistance of others to meet the basic needs of a person afflicted
with a mental disorder.’ ” (Conservatorship of Baber (1984) 153 Cal.App.3d
542, 552–553 [200 Cal.Rptr. 262], citation omitted.)
• “Corrections custody does not qualify as third party assistance under the LPS
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Act as interpreted by case law.” (Conservatorship of Jones, supra, 208
Cal.App.3d at p. 303.)
• “Under section 5350, subdivision (e)(1), a person is not gravely disabled only if
he or she can survive safely with the assistance of a third party. There is
substantial evidence that the assistance offered by [respondent’s mother], while
well-intended, would not meet this requirement.” (Conservatorship of Johnson
(1991) 235 Cal.App.3d 693, 699 [1 Cal.Rptr. 2d 46], original italics, footnote
omitted.)
• “The parties have raised the issue of whether section 5350, subdivision (e)(2),
precluded the trial court from considering [petitioner’s mother’s] testimony on
the issue of third party assistance. This section provides that third parties shall
not be considered willing or able to provide assistance unless they so indicate in
writing. This section has no application in this case. The purpose of section
5350, subdivision (e), ‘is to avoid the necessity for, and the harmful effects of,
requiring family, friends, and others to publicly state, and requiring the court to
publicly find, that no one is willing or able to assist the mentally disordered
person in providing for the person’s basic needs for food, clothing, or shelter.’
This was not the case here; [petitioner’s mother] took the stand at trial and
testified as to her willingness to provide assistance to her daughter. No purpose
of section 5350, subdivision (e), would be served by requiring her to also
execute a writing to this effect.” (Conservatorship of Johnson, supra, 235
Cal.App.3d at p. 699, n. 5.)
Secondary Sources
3 Witkin, California Procedure (5th ed. 2008) Actions, §§ 98, 100
2California Conservatorship Practice (Cont.Ed.Bar) § 23.4
32 California Forms of Pleading and Practice, Ch. 361A, Mental Health and
Mental Disabilities: Judicial Commitment, Health Services, and Civil Rights,
§ 361A.42 (Matthew Bender)
LANTERMAN-PETRIS-SHORT ACT CACI No. 4007
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