Post on 06-May-2015
description
How Do Courts Decide Legal Competency?
Presenter: Lorie Eber, JD, Gerontologist, Certified Personal Trainer
Keynote Speaker on Healthy Living, Healthy Aging, Aging-in-Place & Elder Care
Instructor of Gerontology, Coastline Community College
Boomer Blogger on Health and Aging
Website: AgingBeatsTheAlternative.com
My Dad
0In this presentation, I use the example of my Dad, who is 93 years-old and has been suffering from vascular dementia for 10+ years, to explain how courts determine legal competency.
Is this Man Competent?
It depends…..
My Dad
Legal CompetencyDecided on an Issue-by-Issue basis
Fully Competent
Not Competent to Manage Financial Affairs
Not Competent to Enter into Contracts
Not Competent to Make Certain Medical
Decisions
Not Competent to Sign Will
Not Competent to Decide Care Needs
1940
Fully Competent on Every Issue Imaginable
Fully Competent, but Depressed
2000
Not Competent to Manage Financial Affairs
2001
Not Competent to Enter into Contracts
2005
Not Competent to Make Certain Medical Decisions
2007
Not Competent to Sign Will
2009
Not Competent to Decide Care Needs
2011
Competency All or Nothing
Legal Test for Competency Not that clear
A Better Idea…
0 Make plans for the future while you’re still competent
0 Execute a power of attorney 0 Execute an Advance Health Care Directive0 Establish a trust
0 Save time and money and control your future!
Welcome to the Legal WorldLearn what’s involved in filing for a conservatorship
Expensive
CostsMinimum Initial Costs
0 $400 filing fee*0 $500 for court investigator 0 attorney’s fees if uncontested
Additional Costs if Contested
0 Expert fees for evaluation of competency evidence0 Additional attorney’s fees
*Note: fees and time frames are based on those in Orange County, CA in 2012. They will vary depending on the court location.
Ongoing Costs
Professional fiduciary’s fees
0 Range from $75 to $125 per hour0 Court has discretion to award less 0 Paid from the estate
Time Consuming
Time
0 If uncontested—about 6-8 weeks in Orange County
0 If contested—about one year to hearing
0 Can get temporary conservatorship within 5 days if can prove irreparable harm
Types of Conservatorships
0 Probate: for a person who court finds to be incompetent; in emergency may get a temporary conservatorship
0 LPS (Lanterman Petris Short): for severe mental illness; not for dementia
0 Limited: for developmentally disabled
Probate Conservatorships
Some Important Facts
0 Court must find the person legally “incompetent”
0 May be incompetent to handle finances, but competent to make medical decisions
0 “Least restrictive environment”
Legalese Translated
Conservatorship0 A court process which results in an order appointing a
responsible person to make certain decisions for someone who can no longer do so
Conservator0 The person appointed by a court to manage the
incompetent person’s affairs
Conservatee0 The person who the court has determined is incompetent
and needs another to manage his/her affairs
Who May File a Conservatorship Case?
0 Typically filed by family or professional fiduciary , (must be bondable if for estate) but
0 “any other interested person or friend” may file,
except
0 A creditor may not file
Two Types of ConservatorshipsConservatorship of the Person0unable to provide for personal needs
(health, food, clothing, shelter)
Conservatorship of the Estate0substantially unable to manage
financial affairs or resist fraud or undue influence
Conservatorship Steps 0 Hire a lawyer0 File a petition with the court0 File the required supporting documents0 Have a physician complete a capacity declaration0 Talk to a court investigator0 Attend a competency hearing
Court InvestigatorCourt Social Worker’s duties
0 Make sure there’s a need for a conservator0 Make sure the proposed conservator is qualified0 Determine if anyone will object
Law Presumes CompetencyExtra protections for proposed conservatee
0 Standard of proof is higher than in a typical civil case (clear and convincing evidence)
0 Entitled to have an attorney appointed by the court
0 Petitioner must prove that a conservatorship is the “least restrictive environment” (no other alternative)
0 Proof of a mental disorder alone not sufficient
0 Right to demand a jury trial
General Competency TestA person lacks capacity to make a decision unless she can communicate the decision and understand and appreciate all of the following:
0The rights, duties and responsibilities created by or affected by the decision
0The probable consequences for the decision maker and persons affected by the decision
0The significant, risks, benefits and reasonable alternatives involved in the decision
Must Prove a Deficit
in at least one of the following mental functions and evidence of a correlation between the deficit(s) and the decision or acts in question:
1. Alertness and attention2. Information processing3. Thought processes/disorders4. Ability to modulate mood and affect
Effect of the Deficit o Must be a correlation between the deficit(s)
and the decision or acts in question
o Must significantly impair person’s ability to
understand and appreciate the consequences of his/her actions with regard to the type of act or decision in question
o Court takes into consideration the severity, frequency and duration of the deficit(s)
Competency Evidence0 Capacity Declaration from physician 0 Report from court investigator0 Confidential Supplemental Information filed with
petition 0 Forensic reports, if necessary0 Possible testimony given by proposed conservatee
Dementia 0 If want authority to place conservatee in secured
facility or administer dementia medications:
0 Must file Attachment Requesting Special Orders re Dementia
0 Must file Dementia Attachment to Capacity Declaration
Capacity to Consent to Medical Treatment
Requires proof of the following:0 Respond intelligently to medical treatment0 Rationally participate in treatment 0 Understand all of the following:
1. Nature and seriousness of the illness2. Nature of recommended treatment3. Benefits and risks of treatment or lack of treatment 4. Risks of reasonable alternative treatments
Orders re Medical Treatment
0 Must be separately requested0 Must be supported by a physician’s capacity
declaration
Protections for Conservatee
0 Conservator must allow conservatee the greatest degree of freedom and privacy possible
0 Conservator must give as much regard to the wishes of the conservatee as possible
0 Conservator must encourage conservatee to participate in decision-making
Rights Retained by Conservatee
0 To be represented by an attorney0 Ask judge to replace conservator0 Ask judge to end conservatorship0 Make or change will0 Directly receive and control salary0 Control an allowance
And there’s more….
More Rights of ConservateeUnless right has been limited or taken away by court
0 Receive personal mail0 Vote0 Marry or take domestic partner0 Make own medical decisions0 Enter into transactions for necessities of life for self,
children, spouse0 Engage in activities permitted by court
Thank you!Visit my Websitehttp://www.AgingBeatsTheAlternative.com
I hope you
learned
something!