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How Courts Determine Legal Competency


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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:

Published in: Health & Medicine, Business
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How Courts Determine Legal Competency

  1. 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:
  2. 2. My Dad0 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.
  3. 3. It depends…..
  4. 4. Legal CompetencyDecided on an Issue-by-Issue basis
  5. 5. Fully Competent Not Competent to Manage Financial Affairs Not Competent to Enter into ContractsNot Competent to Make Certain Medical Decisions Not Competent to Sign Will Not Competent to Decide Care Needs
  6. 6. 1940Fully Competent on Every Issue Imaginable
  7. 7. 2000Fully Competent, but Depressed
  8. 8. 2001 Not Competent toManage Financial Affairs
  9. 9. 2005Not Competent to Enter into Contracts
  10. 10. 2007Not Competent to Make Certain Medical Decisions
  11. 11. 2009Not Competent to Sign Will
  12. 12. 2011Not Competent to Decide Care Needs
  13. 13. Legal Test for Competency Not that clear
  14. 14. A Better Idea…0 Make plans for the future while you’re still competent0 Execute a power of attorney0 Execute an Advance Health Care Directive0 Establish a trust0 Save time and money and control your future!
  15. 15. Welcome to the Legal WorldLearn what’s involved in filing for a conservatorship
  16. 16. Expensive
  17. 17. Costs0
  18. 18. Ongoing Costs Professional fiduciary’s fees0 Range from $75 to $125 per hour0 Court has discretion to award less0 Paid from the estate
  19. 19. Time Consuming
  20. 20. Time0 If uncontested—about 6-8 weeks in Orange County0 If contested—about one year to hearing0 Can get temporary conservatorship within 5 days if can prove irreparable harm
  21. 21. Types of Conservatorships0 Probate: for a person who court finds to be incompetent; in emergency may get a temporary conservatorship0 LPS (Lanterman Petris Short): for severe mental illness; not for dementia0 Limited: for developmentally disabled
  22. 22. Probate Conservatorships Some Important Facts0 Court must find the person legally “incompetent”0 May be incompetent to handle finances, but competent to make medical decisions0 “Least restrictive environment”
  23. 23. Legalese TranslatedConservatorship 0 A court process which results in an order appointing a responsible person to make certain decisions for someone who can no longer do soConservator 0 The person appointed by a court to manage the incompetent person’s affairsConservatee 0 The person who the court has determined is incompetent and needs another to manage his/her affairs
  24. 24. Who May File a Conservatorship Case?0 Typically filed by family or professional fiduciary , (must be bondable if for estate) but0 “any other interested person or friend” may file, except0 A creditor may not file
  25. 25. 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
  26. 26. Conservatorship Steps0 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
  27. 27. Court Investigator Court Social Worker’s duties0 Make sure there’s a need for a conservator0 Make sure the proposed conservator is qualified0 Determine if anyone will object
  28. 28. Law Presumes Competency Extra protections for proposed conservatee0 Standard of proof is higher than in a typical civil case (clear and convincing evidence)0 Entitled to have an attorney appointed by the court0 Petitioner must prove that a conservatorship is the “least restrictive environment” (no other alternative)0 Proof of a mental disorder alone not sufficient0 Right to demand a jury trial
  29. 29. General Competency TestA person lacks capacity to make a decision unlessshe can communicate the decision andunderstand 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
  30. 30. Must Prove a Deficitin at least one of the following mental functionsand evidence of a correlation between thedeficit(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
  31. 31. Effect of the Deficito Must be a correlation between the deficit(s) and the decision or acts in questiono 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 questiono Court takes into consideration the severity, frequency and duration of the deficit(s)
  32. 32. Competency Evidence0 Capacity Declaration from physician0 Report from court investigator0 Confidential Supplemental Information filed with petition0 Forensic reports, if necessary0 Possible testimony given by proposed conservatee
  33. 33. Dementia0 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
  34. 34. Capacity to Consent to Medical Treatment Requires proof of the following:0 Respond intelligently to medical treatment0 Rationally participate in treatment0 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
  35. 35. Orders re Medical Treatment0 Must be separately requested0 Must be supported by a physician’s capacity declaration
  36. 36. Protections for Conservatee0 Conservator must allow conservatee the greatest degree of freedom and privacy possible0 Conservator must give as much regard to the wishes of the conservatee as possible0 Conservator must encourage conservatee to participate in decision-making
  37. 37. Rights Retained by Conservatee0 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….
  38. 38. More Rights of Conservatee Unless right has been limited or taken away by court0 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