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LawGirl
LawGirl, Attorney
Category: Estate Law
Satisfied Customers: 4606
Experience:  I have experience in this practice area.
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They are trying to have my mother conserved and recently I

Customer Question

They are trying to have my mother conserved and recently I found that she has obtained some of my mom’s medical information with out consent. It was a CAPACITY DECLARATION. There was NO waver! My mother told her sister months before that she wanted to sue her PSYCHOLOGIST and yet she goes to that Dr.for to fill out that form. When she questioned the doctor he refused to tell her what he wrote and then lied and said he didn’t fax it to anyone. But when I called it was put in my mothers’ medical file already! What can I do? Can I have that thrown out or what? Does it sound like any of them have her best interest in mind?


Can a purposed conservator ask my mothers doctor to fill out the capacity declaration without a court order or a waver signed by my mom?
Submitted: 3 years ago.
Category: Estate Law
Expert:  LawGirl replied 3 years ago.

LawGirl :

Thank you for your question. Although I am an attorney, I cannot represent you. However, I will give you the most thorough information I am able. This is a very slippery slope. To the extent your mother's psychologist believes that she requires a conservator and lacks the requisite capacity to give informed consent, he may be able to fill out the form. However, you have the ability to explain to the probate investigator (who will report to the court) your mother's wishes regarding suing this individual. If this professional's motives and/or actions are questioned, the court may require a capacity declaration from a more objective third party.

JACUSTOMER-vq47zbgr- :

so no court order or waver is required?

JACUSTOMER-vq47zbgr- :

i wont accept until i get an answer to the last part...

LawGirl :

No, a court order and/or waiver is not required. However, if you can show that your mother would never have consented to this and the professional is incorrect in his assessment, you may be able to report his actions to the disciplinary committee who oversees his license and have them review his actions.

Customer :

how could you prove that she never consented?

Customer :

do you have an example?

LawGirl :

It would be difficult for you to prove unless you had conclusive proof that she stopped seeing this professional while she was still of sound mind.

Customer :

why does a hippa form not be required?

LawGirl :

The reason for a conservatorship is because you are making that argument that this person no longer has the requisite capacity to give consent on these matters. As such, even if a HIPPA form was signed and executed, the argument would be that the signature would presumptively be invalid because the individual lacks capacity to make legal and medical decisions like this.

LawGirl :

You can make the argument that a HIPPA form should have been required; however, a court may overlook this (in this context) if they believe a conservatorship is appropriate and that the physician is acting in your mother's best interests.

Customer :

it has not yet been proven wether or not my mother has capacity. we are fighting this with 6 forms of contention filled out by family and friends who believe this accusation to be outlandish. so how is it that they can ignore her rights to patient Dr. confidentiality with out first proving that she is without capacity?

LawGirl :

That is the ultimate question, if it is proven that she does have capacity, then you may be able to attack the professional legally for violation of your mother's rights.

Customer :

So in the mean time,this is all public record and any hopes of her opening her own practice as a psychologist is obliterated! how will she support her self. who will want to higher someone who has that in their record, even if it was proven otherwise. it leaves a BIG question in ones mind of wether or not my mother is the Best choice for them.

LawGirl :

Is your mother a psychologist?

LawGirl :

Is she, in your opinion competent at this time?

Customer :

YES! and YES. This conservatorship is a ploy by the petitioner Debbie( my mothers sister and Paralegal) to get a guardian ad litem appointed because they are tired of the three cases that they represent her in. They did a bad job, and want to get rid of the cases and my mother. Did i mention Debbies' lawyer is her husband, the same layer that is representing my mom in the three cases? They demanded $12,000 in payment three months ago or they would quit all the cases. there was no fee agreement so it is clear to me that this conservatorship is blackmail! they are trying to defame my mother in hopes she will give in to their demands or fire them from the cases. WHY ELSE WOULD THEY BE DOING THIS. IF THEY REALLY CAIRED ABOUT HER WELLBEING THEY WOULD NOT BE TRYING TO HURT HER REPUTATION. If they just wanted to help they would stop adding stress to her life and if they really thought that the Lawyer client relationship had broken down he would remove himself from ALL the cases! what do you think ? does it sound like he has her best interest at heart?

LawGirl :

If your mother is still of sound mind she can testify on her own behalf. Additionally, if she is a psychologist, she should be able to explain to the court that she believes that this is being done solely for the purpose of hurting her reputation. This should be enough to get the conservatorship action dismissed. Once the court hears that she is lucid and that this is really a misunderstanding (where the court is concerned), the petition should be dismissed. Once the petition is dismissed, your mother can sue the psychologist for violating her confidentiality.

Customer :

Thank you! you have been a big help!

LawGirl, Attorney
Category: Estate Law
Satisfied Customers: 4606
Experience: I have experience in this practice area.
LawGirl and 2 other Estate Law Specialists are ready to help you
Customer: replied 3 years ago.
So i just wanted to be clear, there is no conservator ship yet. It has not even been herd in court yet. It has been continued till the 6th of January. The probate investigator has not even met with my mom yet AND the original petition was not for conservator ship of the person (medical) it was for financial reasons only. Is it still ok for her to demand medical records from my mothers DR. without a court order or waver?
Expert:  LawGirl replied 3 years ago.

Demanding the medical records is different than having a capacity declaration filled out. It is not prudent for any medical professional to release her records prior to an adjudication of her ability to consent. (Nor do the records need to be released in order to have a capacity declaration considered before the court.) Given her competency, she can definitely object to her medical records being released.

Customer: replied 3 years ago.
my demanding medical record i was referring to the declaration. Along with the declaration she wanted the Dr to fill out the petitioner attached part of a confidential document,that shows the hearing date and the case number. can she do that?
Expert:  LawGirl replied 3 years ago.
Is your aunt the Petitioner or is the Doctor petitioning for an LDS conservatorship based on mental health?
Customer: replied 3 years ago.
my aunt is the petitioner who went to a doctor of my mothers that my aunt KNOWS my mother has had problems with.
Expert:  LawGirl replied 3 years ago.
If your mother has capacity, then she should contact the doctor and ask the doctor to no longer share information about her. To the extent that the doctor continues and this information ends up in court, you mother will want to fight it and then take legal action against the doctor who seems to be sharing the private information. She can also report this professional to their licensing board for the ethical violation of sharing confidential information against her will.

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