Legal Issues when someone has Dementia – “Incompetence” Determination in Guardianships

This week’s blog continues the discussion of Legal Issues when someone has Dementia.  The introductory installment (April 30, 2015) put forth the issue of “Who can speak for someone with dementia?”  The May 14, 2015 installment discussed the situation where the person with dementia has Advance Directives in place.  The May 21, 2015 installment discussed the legal issues in determining whether a dementia sufferer can choose to have new Advance Directives prepared.  The May 30, 2015 installment discussed options in preparing a Health Care Power of Attorney.  The June 4, 2015 installment discussed how to decide whether to prepare a Living Will.  The June 11, 2015 installment discussed some of the basic issues in preparing a General Power of Attorney.  The June 18, 2015 installment discussed the importance of making the General Power of Attorney “durable.”  The June 25, 2015 installment discussed the importance of NOT making the General Power of Attorney “springing.”  The July 2, 2015 installment discussed revoking prior Powers of Attorney.  The July 9, 2015 installment discussed Do Not Resuscitate orders.  The July 16, 2015 installment discussed the Right of Disposition designation.  The July 23, 2015 installment discussed the Will (or Last Will and Testament.)  The July 31, 2015 installment discussed beneficiary designations on life insurance policies, IRAs, annuities, etc.  The August 6, 2015 installment discussed whether to pre-plan a funeral.  The August 14, 2015 installment discussed choosing a final resting place.  The August 28, 2015 installment discussed pre-planning the funeral ceremony.  The September 3, 2015 installment discussed when and how to pay for the pre-planned funeral.  The September 10, 2015 installment discussed medical insurance choices.  The September 17, 2015 installment discussed long term care insurance.  The September 24, 2015 installment discussed how an elder law attorney can help.  The October 1, 2015 installment introduced the concept of guardianship.  The October 8, 2015 installment discussed the application process for guardianship.  The October 22, 2015 installment discussed the family disputes that can arise during a Guardianship proceeding.  Today’s installment will discuss the Probate Court’s examination of the alleged incompetence of the proposed ward in a guardianship proceeding.

When the person’s disease has taken away the decision-making ability and the person has not prepared advance directives appointing someone else to make decisions, the next legal alternative is guardianship.  A guardianship proceeding forces the Probate Court to determine whether the proposed ward is, in fact, unable to handle his or her own affairs.  Such a finding is called “incompetence” in eyes of the law.

In determining whether the proposed ward is incompetent, the probate court must decide whether the person is “so mentally impaired [as to be] incapable of  taking proper care of the person’s self or property.”  (Ohio Revised Code section 2111.01(D))  If the application for guardianship has an accompanying statement from a health care professional supporting the applicant’s claim that the proposed ward is incompetent and the court investigator supports the claim of incompetence, the court must have a hearing.

In order to rule that the proposed ward is incompetent, the court must receive “clear and convincing evidence.”  Anything short of “clear and convincing” is not enough to judge someone incompetent (in Ohio, anyway.)  How tough is the “clear and convincing” standard?  If you hit me with your car and I sue you for car repairs and medical costs, I must give the court evidence that shows the collision to be, more likely than not, your fault.  This more likely than not is called “preponderance of the evidence.”  Any evidence that leaves the court more than 50% convinced that the collision was your fault allows the court to rule in my favor.  Now, let’s imagine that the county prosecutor believes that you hit me on purpose and wants to imprison you for attempted murder or vehicular assault or any other crime he or she can find to fit the circumstances.  The prosecutor must convince the court more than the “preponderance of the evidence” standard.  To convict you of a crime, the prosecutor must convince the court that you intended to hit me by providing evidence that leaves the court “beyond a reasonable doubt” that you wanted to hit me.  Unless you’ve never seen Perry Mason or Law & Order, I suspect that you have some familiarity with “beyond a reasonable doubt.”  While the law does not assign a percentage on how sure the court must be to find something “beyond a reasonable doubt,” I describe it as 75% sure.

Actually, there is a real life example of the difference between “beyond a reasonable doubt” and “preponderance of the evidence.”  O.J. Simpson was not penalized criminally for his alleged murder of Nicole Brown Simpson and Ronald Goldman because the jury in the criminal court was not convinced beyond a reasonable doubt that he killed the victims.  The Goldman family, though, sued Mr. Simpson for its personal losses from the death of Mr. Goldman, and the court in this civil case ruled that the Goldman family had proved by a “preponderance of the evidence” that Mr. Simpson had killed Mr. Goldman.  As a result, Mr. Simpson didn’t go to prison for murder, but virtually his entire net worth (and future earnings) were awarded to Mr. Goldman’s family.  The difference was the burden of proof.

“Clear and convincing evidence” is even stricter than “beyond a reasonable doubt.”  Unfortunately, I can’t think of any examples, in real life or in fiction, to demonstrate “clear and convincing evidence.”  However, I describe it as 90% sure.  (As a public policy concern, it takes less proof to send someone to prison or even to the death penalty than it does to declare someone incompetent to handle his or her own affairs.)

As a practical matter, the standard of proof does not matter if the proposed ward does not oppose the guardianship request.  If there is no opposition, the medical statement attached to the application and the probate court investigator’s findings provide enough evidence for the court to make a ruling.  If the proposed ward opposes the guardianship request but does not receive help from family members or friends, the probate court can get a pretty good look at how the proposed ward handles himself or herself and can make a reasoned determination on the proposed ward’s ability to “take proper care” of himself or herself.  If, though, a family member or friend helps the proposed ward oppose the guardianship request, the “clear and convincing evidence” standard is such a high hurdle that the guardianship application can usually be defeated.  The involvement of the family member or friend can help a proposed ward, even a proposed ward who should be declared incompetent, avoid (metaphorically) stumbling over himself or herself in court.

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