[687]*687Opinion
WIENER, Acting P. J.
Merritt Neal appeals the order finding him gravely disabled within the meaning of the Lanterman-Petris-Short Act (Welf. & Inst. Code, §§ 5000-5464) (LPS Act) and establishing a conservatorship for him. The court named his common law wife, Betty Kearney, as his conservator. We reverse.
The LPS Act provides that a conservatorship shall be established when, because of a mental disorder, the proposed conservatee “is unable to provide for his basic personal needs for food, clothing, or shelter.” (Welf. & Inst. Code, § 5008, subd. (h)(1).) In Neal’s court trial his counsel admitted Neal did not have the ability to take care of himself and he was not contesting the medical diagnosis that Neal suffered from a mental disorder. Instead he argued this was a “Mary Davis case”; because Kearney was willing to take care of Neal the court could not find him gravely disabled within the meaning of the statute.
Counsel’s reference to this being a “Mary Davis case” was shorthand for his argument that the facts warranted a ruling consistent with the holding of Conservatorship of Davis (1981) 124 Cal.App.3d 313 [177 Cal.Rptr. 369]. (See also Conservatorship of Early (1983) 35 Cal.3d 244, 250 [197 Cal.Rptr. 539, 673 P.2d 209].) In Davis the court held that a person is not gravely disabled within the meaning of the statute if he can provide his basic needs with the help of third parties. “[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.” (At p. 321.) The Davis court also said “[t]his conclusion is required not only by the principles of statutory construction which we have previously reviewed, but is compelled by the constitutional due process clause of the Fourteenth Amendment to the federal Constitution, and by article I, sections 7, subdivision (a) and (16) of the California Constitution.” (At p. 323.)
In Conservatorship of Wilson (1982) 137 Cal.App.3d 132 [186 Cal.Rptr. 748] this court agreed with Davis holding the trial court’s failure to instruct the jury that they could consider the help and assistance offered by friends and relatives of the proposed conservatee was reversible error. (At p. 135.)
Admittedly this is a close case. We conclude, however, that in light of established precedent there is an insufficient basis for the trial court’s ruling.
Arguably the Davis court’s discussion and conclusion expanding the statutory definition of “gravely disabled” could be considered as dictum since [688]*688there was sufficient evidence to support the jury verdict on another ground. In Davis one of the two psychiatrists who testified said Davis was not gravely disabled. Accordingly the jury could have based their decision on that ground without ever considering the offer of assistance from Davis’s friends or family. The Davis court, however, did not rest its decision on the sufficiency of the evidence. In any event this court in Wilson did not attempt to distinguish Davis on this ground. We accepted that holding and we are now bound by it. And even if we were inclined to change our minds we could not do so under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 [20 Cal.Rptr. 321, 369 P.2d 937] in light of Conservatorship of Early, supra, 35 Cal.3d 244 which expressly agreed with the holdings in Wilson and Davis, disapproving the contrary holding in Conservatorship of Buchanan (1978) 78 Cal.App.3d 281 [144 Cal.Rptr. 241] (Early, 35 Cal.3d at p. 255).
We reject the county counsel’s efforts to distinguish Davis on factual grounds. Counsel claims that neither psychiatrist in Davis testified there was a probability that Davis would not take her medication. We disagree. Just as in the case before us, the psychiatrist who opined Davis was gravely disabled felt that although Davis was sincere in saying she would continue to take her medication at home he “had grave doubts as to whether she would be able to continue ‘to feel that way.’ ” (124 Cal.App.3d at p. 318.)
We are also unable to affirm the trial court’s ruling on the basis that Kearney apparently acquiesced in being named as Neal’s conservator. The court said “[t]he proposal this morning is to give you the legal status of a conservator who would make decisions for ... [Neal]. Do you think that is undesirable for some reason?...” Ms. Kearney: “No, I don’t, because I don’t know the ramifications of what it would bring if I were or weren’t, so I can’t answer that.” Kearney’s expressed willingness “to take on the legal responsibility if... she were asked to” is irrelevant to the legal issue of whether Neal was gravely disabled at the time of the hearing. Moreover there is no merit to the county counsel’s implied premise that naming Kearney as conservator is harmless error in light of her willingness to serve informally. There is a substantial difference between functioning freely without the entanglement of the legal process and a finding of grave disability which subjects the conservatee to “greater control of his or her life than one convicted of a crime.” (Conservatorship of Roulet (1979) 23 Cal.3d 219, 228 [152 Cal.Rptr. 425, 590 P.2d 1 ].) The stigma of a civil commitment can be as socially debilitating as that of a criminal conviction. (Id. at p. 229.)
In the case before us the court’s ruling was tied to its legitimate concern that lacking a conservatorship and the legal powers accompanying that status Kearney would be powerless to deal with the likely medical events which would necessitate someone having the requisite authority to furnish hospitals or doctors power to act. The court said, “I do not think it is possible [689]*689for the court to ignore grave and continuing medical problems and I think it would be inhuman and inappropriate to give Ms. Kearney the moral responsibility which she’s happy to assume without giving her the legal power to make important decisions as they arise from time to time. [1!]... I don’t think the Mary Davis case implied the court should be blind to medical realities.”
As laudable as the court’s motives are and as sympathetic as we may be to its ruling, the record establishes that Kearney was willing to assist Neal in reference to his medical needs. The only physician who testified said that he had no doubt that Kearney was an able, willing and qualified person to take care of Neal either directly or through another person for the entire 24 hours of the day. When the doctor was asked as to Neal’s present need to receive medication for his medical disorder he testified “... there really isn’t a medication for his disorder, and I do not really expect it to make any dramatic change. I think the best medicine for Mr. Neal is to stay away from alcohol—and time.”
Conservatorship of Murphy (1982) 134 Cal.App.3d 15 [184 Cal.Rptr.
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[687]*687Opinion
WIENER, Acting P. J.
Merritt Neal appeals the order finding him gravely disabled within the meaning of the Lanterman-Petris-Short Act (Welf. & Inst. Code, §§ 5000-5464) (LPS Act) and establishing a conservatorship for him. The court named his common law wife, Betty Kearney, as his conservator. We reverse.
The LPS Act provides that a conservatorship shall be established when, because of a mental disorder, the proposed conservatee “is unable to provide for his basic personal needs for food, clothing, or shelter.” (Welf. & Inst. Code, § 5008, subd. (h)(1).) In Neal’s court trial his counsel admitted Neal did not have the ability to take care of himself and he was not contesting the medical diagnosis that Neal suffered from a mental disorder. Instead he argued this was a “Mary Davis case”; because Kearney was willing to take care of Neal the court could not find him gravely disabled within the meaning of the statute.
Counsel’s reference to this being a “Mary Davis case” was shorthand for his argument that the facts warranted a ruling consistent with the holding of Conservatorship of Davis (1981) 124 Cal.App.3d 313 [177 Cal.Rptr. 369]. (See also Conservatorship of Early (1983) 35 Cal.3d 244, 250 [197 Cal.Rptr. 539, 673 P.2d 209].) In Davis the court held that a person is not gravely disabled within the meaning of the statute if he can provide his basic needs with the help of third parties. “[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.” (At p. 321.) The Davis court also said “[t]his conclusion is required not only by the principles of statutory construction which we have previously reviewed, but is compelled by the constitutional due process clause of the Fourteenth Amendment to the federal Constitution, and by article I, sections 7, subdivision (a) and (16) of the California Constitution.” (At p. 323.)
In Conservatorship of Wilson (1982) 137 Cal.App.3d 132 [186 Cal.Rptr. 748] this court agreed with Davis holding the trial court’s failure to instruct the jury that they could consider the help and assistance offered by friends and relatives of the proposed conservatee was reversible error. (At p. 135.)
Admittedly this is a close case. We conclude, however, that in light of established precedent there is an insufficient basis for the trial court’s ruling.
Arguably the Davis court’s discussion and conclusion expanding the statutory definition of “gravely disabled” could be considered as dictum since [688]*688there was sufficient evidence to support the jury verdict on another ground. In Davis one of the two psychiatrists who testified said Davis was not gravely disabled. Accordingly the jury could have based their decision on that ground without ever considering the offer of assistance from Davis’s friends or family. The Davis court, however, did not rest its decision on the sufficiency of the evidence. In any event this court in Wilson did not attempt to distinguish Davis on this ground. We accepted that holding and we are now bound by it. And even if we were inclined to change our minds we could not do so under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 [20 Cal.Rptr. 321, 369 P.2d 937] in light of Conservatorship of Early, supra, 35 Cal.3d 244 which expressly agreed with the holdings in Wilson and Davis, disapproving the contrary holding in Conservatorship of Buchanan (1978) 78 Cal.App.3d 281 [144 Cal.Rptr. 241] (Early, 35 Cal.3d at p. 255).
We reject the county counsel’s efforts to distinguish Davis on factual grounds. Counsel claims that neither psychiatrist in Davis testified there was a probability that Davis would not take her medication. We disagree. Just as in the case before us, the psychiatrist who opined Davis was gravely disabled felt that although Davis was sincere in saying she would continue to take her medication at home he “had grave doubts as to whether she would be able to continue ‘to feel that way.’ ” (124 Cal.App.3d at p. 318.)
We are also unable to affirm the trial court’s ruling on the basis that Kearney apparently acquiesced in being named as Neal’s conservator. The court said “[t]he proposal this morning is to give you the legal status of a conservator who would make decisions for ... [Neal]. Do you think that is undesirable for some reason?...” Ms. Kearney: “No, I don’t, because I don’t know the ramifications of what it would bring if I were or weren’t, so I can’t answer that.” Kearney’s expressed willingness “to take on the legal responsibility if... she were asked to” is irrelevant to the legal issue of whether Neal was gravely disabled at the time of the hearing. Moreover there is no merit to the county counsel’s implied premise that naming Kearney as conservator is harmless error in light of her willingness to serve informally. There is a substantial difference between functioning freely without the entanglement of the legal process and a finding of grave disability which subjects the conservatee to “greater control of his or her life than one convicted of a crime.” (Conservatorship of Roulet (1979) 23 Cal.3d 219, 228 [152 Cal.Rptr. 425, 590 P.2d 1 ].) The stigma of a civil commitment can be as socially debilitating as that of a criminal conviction. (Id. at p. 229.)
In the case before us the court’s ruling was tied to its legitimate concern that lacking a conservatorship and the legal powers accompanying that status Kearney would be powerless to deal with the likely medical events which would necessitate someone having the requisite authority to furnish hospitals or doctors power to act. The court said, “I do not think it is possible [689]*689for the court to ignore grave and continuing medical problems and I think it would be inhuman and inappropriate to give Ms. Kearney the moral responsibility which she’s happy to assume without giving her the legal power to make important decisions as they arise from time to time. [1!]... I don’t think the Mary Davis case implied the court should be blind to medical realities.”
As laudable as the court’s motives are and as sympathetic as we may be to its ruling, the record establishes that Kearney was willing to assist Neal in reference to his medical needs. The only physician who testified said that he had no doubt that Kearney was an able, willing and qualified person to take care of Neal either directly or through another person for the entire 24 hours of the day. When the doctor was asked as to Neal’s present need to receive medication for his medical disorder he testified “... there really isn’t a medication for his disorder, and I do not really expect it to make any dramatic change. I think the best medicine for Mr. Neal is to stay away from alcohol—and time.”
Conservatorship of Murphy (1982) 134 Cal.App.3d 15 [184 Cal.Rptr. 363] addressed a similar issue and concluded the pivotal issue in a conservator-ship proceeding was whether the proposed conservatee was “presently” gravely disabled and not whether there was a likelihood of grave disability in the future. (Id. at pp. 17-19.) It is clear here that at the time of the conservatorship hearing Neal could function with Kearney’s assistance. Even though it might be sensible for Neal to have the benefits of a conservatorship so that Kearney as the conservator could take appropriate action when and if the situation were to arise, the statutory system does not permit the establishment of a conservatorship lacking evidence of present disability.
As our opinion suggests we are not totally comfortable with the result which we reach since the trial court’s common sense observation has considerable merit. It does indeed place an unfair burden on a friend to take care of one who is gravely disabled where that friend does not have the accompanying legal authority to take essential action. In effect the present state of the law seems to require that trial judges must use blinders to overlook the reality of the need for a conservatorship in those cases where a proposed conservatee’s precarious medical condition will in all likelihood require the appointment of a conservator. Nonetheless as pointed out in the Conservatorship of Benevenuto (1986) 180 Cal.App.3d 1030 [226 Cal.Rptr. 33], a conservatorship cannot be established because of a perceived likelihood of future relapse. To do so could deprive the liberty of persons who will not suffer such a relapse solely because of the pessimistic statistical odds. Because of the promptness with which a conservatorship proceeding can be invoked the cost in economic and liberty terms is unwarranted. (Id. at p. 1034, fn. 2.)
[690]*690Disposition
Order reversed.
Work, J., concurred.