Judgment of Mental Incapacity

[tumbao]

What is the name of your state? California.

I have the strong suspicion that someone in my family is trying to have my 85 year old mother (a widow) judged legally incapable of making decisions (I forget what that term is). I believe he has Power of Attorney, Medical Care, etc., and wants to gain that control now, and prevent her from making any further legal decisions.

My mother has been getting more confused lately, but I certainly do not consider her so incapable.

What is the legal standard for judging someone incapable of making any decisions, signing documents, etc.? Exactly what has to be proved, and how does it have to be proved? Who makes such a legal judgment on a person, rendering them legally incapable?

What is the procedure this person would have to go through, to get such a judgment? Is there any way it could be opposed, appealed, etc., by other family members?

I would appreciate any insight into this process. Thank you very much.

Happy Thanksgiving to All!

 

[violas]

I think the best way to find out for sure if your mother is mentally incompetent is for you to actually live with your mother and observe her behavior. Contact her doctor and find out if her doctor thinks she is mentally incompetent. My mother has Alzheimer's and I am her POA. My mother still dresses very nicely and you would have to spend some "quality" time with my mother before you would realize she is mentally incompetent. Good luck.

 

[seniorjudge]

What is the name of your state? California.

I have the strong suspicion that someone in my family is trying to have my 85 year old mother (a widow) judged legally incapable of making decisions (I forget what that term is). I believe he has Power of Attorney, Medical Care, etc., and wants to gain that control now, and prevent her from making any further legal decisions.

My mother has been getting more confused lately, but I certainly do not consider her so incapable.

What is the legal standard for judging someone incapable of making any decisions, signing documents, etc.? Exactly what has to be proved, and how does it have to be proved? Who makes such a legal judgment on a person, rendering them legally incapable?

What is the procedure this person would have to go through, to get such a judgment? Is there any way it could be opposed, appealed, etc., by other family members?

I would appreciate any insight into this process. Thank you very much.

Happy Thanksgiving to All!

https://forum.freeadvice.com/showthread.php?t=292961

Here is your original thread; you're confusing everything by posting a bunch of new threads.

In any event, if someone has a POA over someone else, then there is little reason in having that person (the one who gave the POA) declared incompetent.

In any event, I gave you advice on this in the prior thread.

 

[tumbao]

Here is your original thread; you're confusing everything by posting a bunch of new threads.

Sorry, Mr. Judge, that you are confused, but I don't think I confused anything.

First of all, I have only posted two threads EVER on this board, hardly a BUNCH.

This thread here is the first one I posted, yesterday. Therefore, if either is to be called the "original" thread, it is this one, as it came first. Just because you read the other one (posted today) first, doesn't mean it was posted first.

Secondly, these two threads are not at all identical. They involve two different questions--this one involving judgment of mental incompetence, the other involving right to obtain documents.

Two very different questions, although there is a connection, so I mentioned this (first) thread in that (second) one, although I did not have the URL handy.

There is nothing confusing about the two threads to me, sorry if you were confused.

Thank you for replying to this question, but I do not really see any answer to the question in your reply--regarding how such a ruling of "mental incompetence" is obtained, what criteria are necessary to support such a claim, etc. (Please look at the original question for details.) I hope someone can help me with this question, and the other one as well.

Thanks in advance to anyone who can shed some insight into this question.

 

[tumbao]

In any event, if someone has a POA over someone else, then there is little reason in having that person (the one who gave the POA) declared incompetent.

Sure there is. If person 1 has already signed a POA naming person 2, and later person 2 gets person 1 judged to be incompetent to make his own decisions, then person 2 can have full authority and control over person 1 (how full depends on the details of the POA agreement, of course).

 

[seniorjudge]

A ruling of incompetence is obtained when a judge decides that a person is unable to care for bodily needs and/or financial and practical needs.

For example, in some states, if you are unable to take care of your own physical self, there may be a judgment entered against you and a guardian of your person will be appointed.

If you are unable to take care of your own financial needs, there may be a judgment entered against you and a conservatorship of your estate will be appointed.

Obviously, both could be done against you.


http://www.neln.org/bibs/rohleder2.html

I am in no way vouching for this website.

 

[seniorjudge]

Sure there is. If person 1 has already signed a POA naming person 2, and later person 2 gets person 1 judged to be incompetent to make his own decisions, then person 2 can have full authority and control over person 1 (how full depends on the details of the POA agreement, of course).

In your example, person 2 already has power over person 1; that's what a POA is. A guardianship/conservatorship is redundant. In fact, POAs are often executed in the hopes/expectations of NOT having a guardianship/conservatorship proceeding in the future.

 

[tumbao]

In your example, person 2 already has power over person 1; that's what a POA is.

Hmmm? Say a 50 year old person in good health, signs a POA agreement with a relative, for the possibility that if at some point he is not capable of managing his own affairs, the POA would be authorized to do so.

That doesn't mean the POA has power over him now, and could make decisions for him contrary to his wishes! If that were the case, no one would sign POAs!

The purpose of the POA, is it not, same with medical POA, is for the person so named to take over decision-making when the person who contracted it cannot do so himself, i.e. is incompetent?

 

[seniorjudge]

Hmmm? Say a 50 year old person in good health, signs a POA agreement with a relative, for the possibility that if at some point he is not capable of managing his own affairs, the POA would be authorized to do so.

Certainly, limited POAs are possible. I have not read the POAs involved here, however.


That doesn't mean the POA has power over him now, and could make decisions for him contrary to his wishes! If that were the case, no one would sign POAs!

Usually (in the greatest majority of cases) POAs will have power over the person signing them; that is the whole purpose of doing a POA.


The purpose of the POA, is it not, same with medical POA, is for the person so named to take over decision-making when the person who contracted it cannot do so himself, i.e. is incompetent?

Not necessarily; although, as I said, you can limit or restrict any POA.

 

[tumbao]

A ruling of incompetence is obtained when a judge decides that a person is unable to care for bodily needs and/or financial and practical needs.

For example, in some states, if you are unable to take care of your own physical self, there may be a judgment entered against you and a guardian of your person will be appointed.

Yes, I know that. I'd like to know more specifics though (I haven't looked at the link yet, I will), especially for California.

Exactly how does person 1 get such a ruling against person 2? Person 1 would have to go to a court and request a court date? When person 1 appears before the judge, what evidence would he have to proviide that person 2 is incompetent?

Does Person 2 appear before the judge at the ruling, so the judge can decide on the person's competency from his own observation?

Can someone else (Person 3) appear before the judge as well, to contest what Person 1 says, to argue against such a judgment of incompetency for Person 2?

If there is such a judgement of incompetency, can it be appealed? How?

If anyone can give more details about it, such as my questions above, especially for California, I would greatly appreciate it.

Thank you.

 

[tumbao]

Usually (in the greatest majority of cases) POAs will have power over the person signing them; that is the whole purpose of doing a POA.

I don't know if you get my point about this. Once again, as I wrote, if signing such an agreement gave the other person immediate control over you (whether limited or full), no one would sign them.

They all have a clause relating to "in case of incompetency", don't they? That's what such an agreement is for--so that when you are not capable of handling your affairs yourself, you are entrusting someone else to handle them for you. The person is not incompetent when they sign the POA, otherwise the signature would not be valid.

The person signing the agreement is a competent person, preparing for the future when he or she may be incompetent, trusting their affairs to that other person when that becomes the case, which could be decades away. They are not giving immediate control to the POA now!

I'm no lawyer, judge, or other expert, but I'm pretty sure that what I wrote above is the case. I don't know what your point is about that.

 

[tumbao]

http://www.neln.org/bibs/rohleder2.html

I am in no way vouching for this website.

I'll vouch for it. I just read the article. Very interesting. Thank you.

Not that it answers most of my questions about court proceedings, etc. (It mostly involves how a lawyer can attempt to discern his client's competency.) So, I would still appreciate any info, if someone can answer my questions, in other posts of this thread.

Definitely an interesting article though. Thanks.