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!