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Jewish World Review Feb. 27, 2006 / 29 Shevat, 5766 Mental incapacity may negate legal proceedings By Jan L. Warner & Jan Collins http://www.JewishWorldReview.com | Q: After the last of my siblings left home in the 1970s, our parents seemed to be getting along nicely. When Dad retired in the mid-'90s, they took some trips, learned how to golf and traveled around visiting my two brothers and me. Then, about five years ago, Mom began to change. She became very erratic, didn't sleep well (and therefore kept Dad up all night), stopped cooking and cleaning, and would sometimes disappear for a day at a time. Because we have been concerned about her health and that of our father, we tried to intervene, but she won't go to a doctor and is impossible to talk to. The police have been called to their house by neighbors several times when she went out in the yard screaming at 1 a.m. Most recently, without warning to Dad and apparently on the advice of her younger sister (age 68), Mom cleaned out several bank accounts, hired a lawyer, and says that she wants a divorce. Her sister has been married four times, has no money and has now leeched onto our mother. My brothers and I called her lawyer in an effort to tell him our concerns about her mental health and what was really going on, but he refused to talk to us. Now Dad has hired a lawyer, and all of us children are in the middle because we signed affidavits stating we didn't think our mother was in good mental condition. The last time we saw her, it was obvious that she had not bathed, and she was very disheveled. She and her sister are inseparable. We think that her lawyer knows there are problems and is either not dealing with them or ignoring the obvious. Our mother needs help — and not from her money-grubbing sister, but we can't seem to get through to anyone. What can we do to help our mother get the treatment she needs and make sure our father does not get crucified by a legal system that has neither the time nor inclination to care? A: Dealing with clients who may be impaired because of mental or other disabilities is a fast-growing problem area for lawyers in all areas of the law, and the matrimonial segment is no exception. On one hand, the lawyer must protect the secrets provided by the client and, as much as possible, maintain a normal attorney-client relationship; on the other hand, upon determining that a client does not have the ability to make good decisions and act in his or her own interests, the lawyer has an obligation to take steps that may include such protective action as the appointment of a guardian. The normal attorney-client relationship is based on the assumption that when advised properly, your mother is able to make decisions about important matters; however, if she suffers from a mental disability, a normal attorney-client relationship is not possible. If your mother doesn't have the mental capacity to understand the proceedings and a guardian or guardian ad litem is not appointed to represent her, then the proceedings before the court could well be nullified because an incapacitated person may not be able to make legally binding decisions. If the facts are as obvious as you state, we think her lawyer should have had your mother evaluated by competent and independent medical experts to determine her mental capacity. In our view, this means that a neurologist, a psychiatrist, a geriatrician, or a combination of these medical professionals should have been consulted early on because there were certainly enough "red flags" to put her lawyer on notice. Assuming your mother's lawyer is not going to act, your father's lawyer can approach the court and seek orders (1) requiring your mother to undergo such evaluations, and (2) appointing an independent guardian ad litem to represent your mother's interests. And if it appears that your aunt is exerting undue influence over your mother, as you believe, a complaint to adult protective services may be necessary. A more drastic avenue may be for one of you children to seek guardianship or involuntary commitment in the probate court. These are drastic remedies, but under the circumstances you state, one or more of them may well be warranted. Every weekday JewishWorldReview.com publishes what many in in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here. JAN L. WARNER received his A.B. and J.D. degrees from the University of South Carolina and earned a Master of Legal Letters (L.L.M.) in Taxation from the Emory University School of Law in Atlanta, Georgia. He is a frequent lecturer at legal education and public information programs throughout the United States. His articles have been published in national and state legal publications. Jan Collins began co-authoring Flying SoloŽ in 1989. She has more than 27 years of experience as a journalist, writer, and editor. To comment or ask a question, please click here. Archives © 2006, Jan Warner

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