I'm an attorney but retain my ability to speak English. In this PowerPoint, I explain in readily understandable language, how courts evaluate the legal competency of people with impaired mental capacity (often due to dementia.) I also address the practical aspects of filing a conservatorship petition, including the cost and time involved. For more information about Lorie Eber, please visit: http://www.AgingBeatsTheAlternative.com.
1. 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
2. My Dad
0 In 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.
5. 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
15. 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 Directive
0 Establish a trust
0 Save time and money and control your future!
16. Welcome to the Legal World
Learn what’s involved in filing for a conservatorship
21. 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
22. 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
23. 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”
24. Legalese Translated
Conservatorship
0 A court process which results in an order appointing a
responsible person to make certain decisions for
someone who can no longer do so
Conservator
0 The person appointed by a court to manage the
incompetent person’s affairs
Conservatee
0 The person who the court has determined is
incompetent and needs another to manage his/her
affairs
25. 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
26. Two Types of Conservatorships
Conservatorship of the Person
0 unable to provide for personal needs
(health, food, clothing, shelter)
Conservatorship of the Estate
0 substantially unable to manage
financial affairs or resist fraud or undue
influence
27. Conservatorship Steps
0 Hire a lawyer
0 File a petition with the court
0 File the required supporting documents
0 Have a physician complete a capacity declaration
0 Talk to a court investigator
0 Attend a competency hearing
28. Court Investigator
Court Social Worker’s duties
0 Make sure there’s a need for a conservator
0 Make sure the proposed conservator is qualified
0 Determine if anyone will object
29. Law Presumes Competency
Extra 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
30. General Competency Test
A person lacks capacity to make a decision unless
she can communicate the decision and
understand and appreciate all of the following:
0 The rights, duties and responsibilities created by or
affected by the decision
0 The probable consequences for the decision maker and
persons affected by the decision
0 The significant, risks, benefits and reasonable alternatives
involved in the decision
31. 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 attention
2. Information processing
3. Thought processes/disorders
4. Ability to modulate mood and affect
32. 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)
33. Competency Evidence
0 Capacity Declaration from physician
0 Report from court investigator
0 Confidential Supplemental Information filed with
petition
0 Forensic reports, if necessary
0 Possible testimony given by proposed conservatee
34. 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
35. Capacity to Consent to Medical
Treatment
Requires proof of the following:
0 Respond intelligently to medical treatment
0 Rationally participate in treatment
0 Understand all of the following:
1. Nature and seriousness of the illness
2. Nature of recommended treatment
3. Benefits and risks of treatment or lack of treatment
4. Risks of reasonable alternative treatments
36. Orders re Medical Treatment
0 Must be separately requested
0 Must be supported by a physician’s capacity
declaration
37. 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
38. Rights Retained by Conservatee
0 To be represented by an attorney
0 Ask judge to replace conservator
0 Ask judge to end conservatorship
0 Make or change will
0 Directly receive and control salary
0 Control an allowance
And there’s more….
39. More Rights of Conservatee
Unless right has been limited or taken away by court
0 Receive personal mail
0 Vote
0 Marry or take domestic partner
0 Make own medical decisions
0 Enter into transactions for necessities of life for
self, children, spouse
0 Engage in activities permitted by court