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.

3. It depends…..

4. Legal Competency
Decided on an Issue-by-Issue basis

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

6. 1940
Fully Competent on Every Issue
Imaginable

7. 2000
Fully Competent, but Depressed

8. 2001
Not Competent to
Manage Financial Affairs

9. 2005
Not Competent to Enter into Contracts

10. 2007
Not Competent to Make Certain Medical
Decisions

11. 2009
Not Competent to Sign Will

12. 2011
Not Competent to Decide Care Needs

14. Legal Test for Competency
Not that clear

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

17. Expensive

18. Costs
0

19. Ongoing Costs
Professional fiduciary’s fees
0 Range from $75 to $125 per hour
0 Court has discretion to award less
0 Paid from the estate

20. Time Consuming

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