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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Family Law
Satisfied Customers: 90306
Experience:  Experienced attorney: Family law, Estate Law, SS Law etc.
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Dear XXXXX: Thank you for your advice and I am going to hire

Resolved Question:

Dear XXXXX:

Thank you for your advice and I am going to hire an attorney to get my mother’s conservatorship away from the Office of Public Guardian. I have countless pieces of evidence that my mother’s public guardians failed their duty in protecting my mother from harm. They not only allowed the nursing home where my mother is staying to abuse my mother resulting in her lying in bed 24 hours a day for four and a half months but also refused to give consent to the Office of Ombadsman to investigate my complaints against the nursing home. I would like your advice about which of the following options I should pursue.

1. Oppose to my mother’s conservatorship and file a petition for appointment of my mother’s conservator.
2. Appeal to the court that the declaration of my mother’s incompetency be void.

Option 1: I believe that the Office of Public Guardian will strongly oppose to my appointment of my mother’s conservator and argue that I am not a proper person for the appointment. They have both the investigation report by the Adult Protective Services which was all based on untrue information provided by the hospital and my mother’s medical records from the hospital showing my irrational interference with their professional care of my mother which I had never heard from anyone until the court hearing on 05/27/11 when my mother’s court-appointed attorney orally summarized his P.V.P. report which was just presented to the judge. I have no way to prove that I did not abuse my mother, interfere with their care of my mother or fired 8 of the hospital’s doctors and many members of their staff.
Please advise if I can request to have a lie detector test done by a court certified specialist to prove that I was not lying or they were lying.

Option 2: I learned that my mother had dementia for the first time in my life one day before the court hearing when I received the petition by mail filed by the Department of Mental Health for my mother’s conservatorship. I later found out that my mother was asked about ten questions requiring only nod or shake of head through improper translation by a nurse of the hospital.

I have proof and witnesses that my mother did not have dementia and could answer questions correctly by writing such as when, what, why, who and where when she was in the ICU of the hospital one year ago. Two other persons also knew that my mother did not have dementia. One is a psychiatrist employed by the Department of Mental Health whom my mother visited every 6 or 8 weeks in the past 7 years to see if her anxiety and depression disorders which she had 11 years ago were still under control. The Office of Public Guardian is under the Department of Mental Health. The other is my mother’s court appointed attorney who wrote to me in his email that my mother was very sharp and he did not think that she had dementia though he was not a medical professional. He asked my mother questions about two weeks after the court hearing on 05/27/11 with the help of a Chinese-speaking nurse of the hospital without my knowledge and presence. My mother wrote to me what questions he asked and how she answered when I came back to her room about one hour after the attorney left. I then email him to see if my mother was not able to answer or incorrectly answered any of his questions.

I am afraid that they will ask my mother to prove that she no longer has dementia. My mother is no longer like she was one year ago when was in the ICU of the hospital as I previously mentioned. My mother has been lying in bed 24 hours a day and not very alert for four and a half months. She has severe sleep disorders and is not able to raise or bend her right leg when her CAN helps exercise her in bed, not able to sit up straight on bed or balance herself.

Either way, I must win the case and have my mother transferred out of the nursing home and have independent doctors to check my mother’s health conditions. Please advise which of the above two options is the best for me or advise me what other options I may have. Please also advise if non personal delivery of the petition to my mother, which I believe is a required procedure, will help me to win the case. Thank you again for your assistance.


Sincerely yours,XXXXX
Submitted: 2 years ago.
Category: Family Law
Expert:  Law Educator, Esq. replied 2 years ago.
Unless you have your doctors lined up to testify that she is not mentally incompetent and is capable of making her own decisions, fighting to change the conservator and get yourself named guardian would be still the best bet even though they may want to fight you over the guardianship, since you can at least argue to get a different guardian appointed of your choosing even if it is not you.

If you have a doctor who can strongly testify she is mentally competent then fine, the second option will work and then she can grant you a PoA and you can assist her in controlling her affairs.


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Customer: replied 2 years ago.

Dear XXXXX,



Thank you for your reply, but how about the following related to my second option:



1-(a). If the physician can not prove that he had at least two year's experience in diagnosing dementia? 1-(b). If the physician can not provide information about when and how the assessment was performed? 3-(c). If the physician can not prove that my mother had dementia as defined in the current edition of Diagnostic and Statistical Manual of Mental Disorders? I believe that the physician can prove none of the above but he declared under penalty of perjury under the laws of the State of California that the foregoing (1-(a)& 1-(c)) was true.


2. The petition was not personally delivered to my mother, which I believe is a required procedure before the court hearing.


3. I can have the psychiatrist employed by the Department of Mental Health whom my mother visited every 6 or 8 weeks in the past 7 years to testify that my mother did not have dementia one year ago when the hospital doctor declared that my mother had dementia, but no now as I previously mentioned. Does she must prove that she does not have dementia now?



Sincerely yours,



Frank C. Wu

Expert:  Law Educator, Esq. replied 2 years ago.
1) The physician not being able to prove experience in diagnosing dementia and all of that is part of the evidence, but you will have to have an expert who does have experience in dementia and will have to have them testify and without that you would not win.

2) The improper service on your mother had to be raised at the time of the suit or on appeal, it is too late now to raise that issue.

3) You have to prove she did not have dementia then and does not have it now to have the incapacity removed from her.
Customer: replied 2 years ago.

Dear XXXXX,

Thank you for your reply, but I am still not very convinced.

I can ask the psychiatrist employed by the Department of Mental Health to testify that mother did not have dementia and I can also ask eight non medical professional witnesses to testify that my mother could answer questions correctly by writing such as when, what, why, who and where when she was in the ICU of the hospital one year ago.

The Doctor at the ER of the hospital revised my mother's medical record on 02/11/2011 when my mother was brought there for a prescription of stomach pain relief to read as "she has a very complicated history of severe dementia, -----------" which was totally untrue and I have no idea at all where they got the information from. The ER doctor also stated that his assessment included dementia but the fact was that no body there even talked to my mother before or after the intubation (my mother does not speak English and she was still unconscious when she was transferred to the ICU in the evening).

1. Can’t I question the doctor why my mother was not able to answer simple questions requiring only nod or shake head and ask him to provide information about when and how the assessment was performed to prove that my mother had dementia as defined in the current edition of Diagnostic and Statistical Manual of Mental Disorders?

2. Can’t I ask the ER doctor to provide my mother’s “original” medical record to show that he did assess if my mother had dementia and how he assessed when she was brought there by ambulance? I think that it is a common sense that no ER doctor will do such an assessment.

3. Even my mother still needs a conservator after it was found that the two doctors provided untrue documents resulting in my mother’s being declared incompetent, provided that I can ask the above two questions. Will not the findings be helpful for me to bring another suit against the physician and the hospital in the future?

Sincerely yours,

Frank C. Wu

Expert:  Law Educator, Esq. replied 2 years ago.
I do not know what you are not convinced about, the fact is you are not a medical expert so what you think about her mental condition does not matter to the court I am afraid. So no matter what, you must have a medical expert testifying she is mentally competent.

You can question the doctor as to how he made his assessment, but you cannot challenge how he made the assessment without your own medical expert's testimony.

2) The ER doctors do not always do any in depth assessment for dementia, but you would indeed use the ER medical record as part of your evidence.

3) The finding may or may not help you win your malpractice suit, but this is your only shot at a suit against them, there is no "another suit against" anyone in the future over this incident. This is why you need an attorney and a medical expert because you get one shot to do this right.
Law Educator, Esq., Lawyer
Category: Family Law
Satisfied Customers: 90306
Experience: Experienced attorney: Family law, Estate Law, SS Law etc.
Law Educator, Esq. and 11 other Family Law Specialists are ready to help you

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