A very good question from one very smart reader

JoAnne,

Regarding my parent’s competency proceeding…

At the very first hearing I went to, Judge M**** said, “About the request for rights barring illegal search and siezure.  This is my courtroom, and I order *****’s door broken down if she will not go for an evaluation, voluntarily.  And if anyone obstructs that course, they will be arrested, so I am making an order to that effect.  Is that clear?”
From then on it has been a matter of judicial consistency to deny my mother and myself our constitutional rights,at every singe hearing involving my mother and me.

************* name ommitted…..
Dear ******

I don’t know who your lawyer was then, but if you mother was competent, most physicians start giving people “mini mentals” and other tests when they reach “a certain age” or when competency might become an issue.

generally if the person scored 26 (out of 30)  or higher on the mini mental, you have the right to bring those tests to court, and you have the right to subpoena her personal physician to testify that she is competent sufficiently to make decisions concerning her personal life and property and that should fend all that nonsense off.

If she is border line or there seems to be no hanky panky with her finances (I don’t know if anyone alleged that), is to have her grant you a POA, have the doctor say her diminishment is minimal and she made the right choice choosing you as a POA because you have been primarily caretaker for the past X years, etc.

there are many, many ways to head off a judge saying “break down the door and do a mental exam”, but pretending it doesn’t exsit or you don’t want it is not the way to go.

the court has the right to step in soon as someone makes the allegation your mother is incompetent, or is diminished and there is financial exploitation, or she is frail and cannot handle her affairs.

most of the time it takes a lawyer to go in there, present the evidence, work with the client and the senior and present more evidence to the court before the judge will be assured everything is okay before forcing a mental exam.

your mother had the right to appear in court and testify before the judge, tell him she believes she is competent, can read the newspaper, bring her bank statements and repeat she knows what is in each of her accounts, bring an appraisal of her home and say she knows the value of her home.

one criteria is whether or not she knows the nature and extent of her finanaces, if she knows who is president, if she currently reads and understands books, if she passed a recent written driver’s exam.

the court should NOT be declaring someone incompetent who just passed a MENSA exam.

one of the keys to all of this is to get to a skilled lawyer first before the court appointed hacks get to her and keep her home clean and neat and her finances in order.  bring the recent minimentals to court to show she is competent.

she has the right to ask for a lawyer herself and have that lawyer put together a competency defense for her.  this defense should consist of the basics–knowing the nature and extent of her finances and property, knowing who the president is and some portion of the news, date and time,  Minimentals, passing a written driving exam, etc.

all of this should be filed with the court to fend off probate vultures and greedy relatives once competency becomes an issue.

i know it does not seem fair, but once a relative or other interested party brings up competency, a skilled lawyer will have to put together a competency packet for a judge.

if you do not do this, the probate court has been burdened with the responsibility of making sure every senior is protected–that is, they are not financially exploitated, they live in a clean and comfortable home.

i hope this explains it better how these cases are supposed to be handled and I think 90% of the time, that is what happens.

of course, there’s the 10% that turn into unmitigated nightmares.  the family fights, the Public Guardian does a Japanese lettuce inspection, the GAL’s stir up trouble, the incompetent is not service with a summons and Petition and notice of the hearing, relatives are not served, only the reports of a physician who saw the person for 10 min and wrote up a report for $1,000 is used–not the primary physician.  You want to prevent all this and head it off.  as far as I can tell, most of the time the guardianship proceeds smoothly, but then the 10% become a justice nightmare and the authorities do not investigate, and the court looks the other way.  that is what this blog is for. to warn people, to get them prepared for court, to make sure that justice is done.

joanne

JoAnne,

     At the very first hearing, April 30, 2001, Judge Munch said, “About the request for rights barring illegal search and siezure.  This is my courtroom, and I order Ms. Bush’s door broken down if she will not go for an evaluation, voluntarily.  And if Mr. Bush obstructs that course, he will be arrested, so I am making an order to that effect.  Is that clear?
From then on it has been a matter of judicial consistency to deny my mother and me ourrights,at every singe hearing involving my mother and me.  They state and restate their claim that there must bejudicial consistency.  That is why they cannot back down now.
    So what do you think of that, miss high and mighty, “I’m an American?”
    I want to know what you think, of the power of their Royal High and MightyNess, because I think the reasoning is so twisted, and they use it like a sledge hammer to beat us over the head with, a mighty pair of pliers it takes to untwist it.

Rudy

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