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In August of this year, my 81 year old mother was found driving lost in downtown Los Angeles and was discovered by the LAPD. I live north of San Francisco and as the eldest son, was notified about her dire situation. She was appeared lost and confused and t she was taken to a local clinic and diagnosed with Dementia/Alzheimer's. In September, 2010, I made plans to move down to the LA area and move into her home to take care of her as her physician stated that she needs 24/7 care and shouldn't be alone. I have one brother who is gravely ill with schizophrenia and is non-compliant with his medications. I do feel that his behaviour had led to her breakdown because of the daily verbal onslaughts that she endured. In addition, a Notice of Default was filed in August 2010 and she and my brother face foreclosure. To make this story short, in September, I made several trips to arrange for her care and after a family meeting with her surviving sisters and her close friend, all plans were agreed upon. The next day, her friend decided to change everything and take over her care and mother has succumbed to this. My mother's friend has taken over in her care where she just makes two visits per day, takes her on errands, shopping, and banking. My mother also has made her friend POA over her banking and budgeting. This was done after her official diagnosis on July 15, 2010. This friend of my mother also has a long history with my mother as they both have a very bad gambling history. One enables the other, in fact in 2004 my mother lent her friend over 25K in an unsecured loan which she has never repaid. I have some documentation about this loan as my mother has asked me to assist her with getting some repayment several years ago. I've saved some of the correspondence regarding this matter. So, here we are currently. My mother's friend doesn't want me in the picture at all and is doing all that she can in blocking me and isolating me from my mother. I can't tell you how painful this has been as her memory is already impaired and this woman is filling her with outright lies about me. My mother is currently very untrusting of me and truly shows the characteristics of Alzheimer's. This week, my mother signed a petition for a Restraining Order against me. This was initiated by her friend, not by her, she just kept nagging her to sign the petition pages so she could submit it to the court. Her friend did this in retaliation because of my complaint that i recently filed with Adult Protective Services regarding her 'Isolation of my mother from me,' and the worry that I have about no one supervising my mother and disabled brother's fiscal matters especially since her friend has an active gambling addiction. In fact, I just found out this week that they went to ta local casino to gamble. My brother and I just received a small inheritance from the Netherlands and I'm so worried there's no check and balance involved. Being away long distance is so frustrating and i don't have a lot of money for legal assistance. Do i need to file for conservatorship for both brother and mother? how can i stop this woman at the moment? this restraining order is bogus and she's just using my mother for her gain against me. help?michael
Optional Information: State/Country relating to Question: California Already Tried: received a letter of diagnosis from her attending physician/clinic. if i try to obtain conservatorship, is there a way of obtaining this without an attorney? I live quite a ways from my mother, do i file here where i live or down in Los Angeles?
Hi, Michael, and Welcome to JustAnswer
Thank you for your question,
My name isXXXXX am a licensed, practicing Attorney with 25 years experience and will be glad to help with your question
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I am sincerely XXXXX XXXXX hear that someone who is supposed to be your mother's friend and is supposed to be taking care of her, is actually taking advantage of her. Unfortunately, there are many people around who are ready to take advantage of another human being under the guise of "caring for them".
If, when your mother's physician diagnosed her with dementia/Alzheimer's, her mental condition had progressed to a degree that would make her legally incompetent to execute a Power of Attorney, or file a Petition for a Restraining Order, then the Power of Attorney is null and void and of no legal effect because a person must be of sound mind in order to execute a Power of Attorney and appoint someone as their Attorney in Fact. They would be equally legally incompetent to file a Petition for a Restraining Order.
Therefore, the first thing you must do is to send written notice to any and all banks and financial institutions in which your mother has an account and state something to the effect:
"Please consider this formal notice that my mother, Mrs. __________, a customer of your bank has been diagnosed with dementia and Alzheimer's disease by her treating physician; a copy of that (medical report, letter - whatever doctor gave you), making her legally incompetent to execute any legal document. It is my understanding that subsequent to her diagnosis, she was coerced into executing a Power of Attorney which she signed under duress, naming So and So person, as her Attorney in Fact. This is to formally advise you and put you on notice that such Power of Attorney is null and void and of no legal effect. You are hereby directed and instructed to disregard that document purporting to name _______ as my mother's Attorney in Fact.
Any acts taken by your financial institution contrary to the instructions contained in this letter with respect to any account my mother maintains with you will result in your being held liable for any loss or losses to any account maintained by my mother. "
You should file for Conservatorship of your mother's person and her finances in the County where your mother resides. It would be best if you engaged an attorney to prepare the pleadings which are to be filed with the Court. This is a very specialized area with many pitfalls and you want to make sure that everything is done properly so that you can protect your mother and her interests. It will be necessary for the Judge to hear Testimony from, and review reports by, your mother's attending phyicians. In addition, it is not uncommon for a Judge to appoint an objective physician to examine your mother and prepare a report for the Judge. I should tell you, however, that it will be difficult, but not impossible, to get a favorable ruling simply because you live a great distance from your mother.
As for your brother, he would have to be declared incompetent by the a Court before the Court will appoint you as Conservator.
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Thank you for your guidance in the start of my nightmare. I understand what to do about the banks but what about the pending restraining order that was initiated by her friend but signed by my mother. i don't really want a peace officer come to my residence and serve notice to me to advise me of a court date. Can this be dealt with prior to, or is there some sort of 'check and balance,' where she is questioned prior to submitting her petition to see that she's not behind it. i talk with her over the phone almost every day and she said that last week she needed to sign the `petition and last wednesday she, my brother and her friend went to `LA superior court to wait in line. I'm not sure what she meant by that. If I do get served then I have to go to the expense of flying down to LA, obtain legal defense, hotel expense, etc and my mother and brother will need to go to court also. This seems ridiculous if she's incompetent to file a petition in the first place. Any thoughts . I'm using a Spanish keyboard and I can't find the diacritical marks or punctuation. Sorry about that.Please advise.Michael
If you had already filed with the Court, requesting that you be named Conservator, you would be able to deal with this out of Court, since the Court would have already decided that she was not legally competent to initiate any such action on her own.
However, since the action to appoint you Conservator has not yet been commenced, you cannot do anything before you are served with the Petition for a Restraining Order. At that time, you will file your Answer to the Petition, denying each of the allegations, paragraph by paragraph, making sure that you incorporate in your Answer the fact that you live in the San Francisco area and your mother lives in the Los Angeles area, so you could hardly be engaging in any harassing actions which would warrant, or require a restraining order, then asking the Court to dismiss the Petitioner's Petition with prejudice. After you Answer each allegation, you should file a Counterclaim, alleging that she suffers from dementia and Alzheimer's disease, that she was diagnosed on such date _______, you can attach her treating physician's report as an Exhibit, and is incapable of initiating such an action on her own, that she was coerced to do so by Such and Such person, that she is not legally competent to bring any legal action on her own, etc., then ask the Court to grant judgment in your favor.
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Experience: 25 Yrs. Family Law, Estates, Real estate & Bus. Law, Criminal Defense, Immigration, Employment Law
Happy Holidays Andrea:Update on the latest situation and another question regarding the last issue about 'restraining orders.' Since our last exchange, I've been purposely quiet and not contacting my mother at all via telephone. I did send her a card and flowers for Christmas. I know now that she's not herself as she's never missed a holiday with a card or not called when she received flowers from me. I think I shared with you that the reason that her friend is so upset with me is that I filed a report with Adult Protective Services and that's the reason why she's using this R.O. as retaliation. Well, a detective from the LAPD called me to follow up on my complaint with APS. She basically said that I needed to file for conservatorship ASAP and I understand this and plan to fly to LA next week to take care of this. In the meanwhile, I found out from my aunt that this woman has dragged my mother and disabled brother back into court to ask for an extension of her RO. This woman also has been calling my home and is planning to come up to the Bay area to find me and serve the petition. I feel as tho' I'm being harassed and she's determined to follow through even tho' my mother has requested that she drop the whole thing. My question is this. Can I file a RO against her to stop this Harassment or would the court look down on this as she's trying to locate me? My original complaint to APS was about 'isolation' of my mother but they don't seem to be doing anything to warn this woman about her behaviour. I've included a $25 bonus for your answer to this question.Please advise.Michael Haasjes
Dear XXXXX,
Sorry, I wasn't online for a few days, so I just got your message, I hope your holidays were great,
I'm glad that the detective confirmed my advice regarding a conservatorship. I'm equally saddened that Adult Protective Services has not taken a more active role to protect your mother until you can at least get your petition for conservatorship filed and heard. You must file this petition before the hearing date on the extension of the restraining order.
It is not harassment if someone is trying to serve you with process. I would suggest that you allow her to serve you and also suggest that you attend the hearing. The Burden of Proof will be on her to show that there is a need for the restraining order to be continued and in so doing she will have to show that you have been contacting your mother which she will not be able to prove since the only contact you have had has been the Christmas card and the flowers.
You absolutely must bring with you a formal report from your mother's attending physician regarding his diagnosis of dementia and her legal incapacity to execute a Power of Attorney. This will nullify everything this other woman has done, rendering it void from a legal standpoint. You must also bring with you a copy of the Petition for Conservatorship which you have filed.
You should get the Court to issue Subpoenas so that you can serve it on your mother's banks to show all withdrawals and checks written by this other party. A Subpoena should also be served on this other woman for all her banking, checking, and personal information to show that she has been using your mother's money to pay her bills. Try to show a relationship between withdrawals and checks written on your mother's accounts with corresponding payments of bills by this other woman. Then, you can counterclaim for repayment by her to your mother of all amounts she has taken.
If necessary, ask the Judge hearing the request for an extension of the RO, for a continuance so that a Court appointed doctor can examine your mother. This will put a stop to this woman once and for all. You can use this medical report at the hearing on your Petition for Conservatorship. You should get as many witnesses who know your mother to come in and testify as to how this woman has isolated your mother from everyone else and also that your mother is not acting the way she used to.
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Andrea,Many thanks for your sensible advice. It's starting to make sense to me how the judicial system works. What is so difficult to accept is this parent/child role reversal that I'm experiencing, 'in vivo,' and my mother is telling me 'no,' and I need to make decisions that she doesn't want. Compound this with the malicious behaviour of her interfering friend. I will continue to place pressure on APS regarding my original complaint and her active and documented actions. They need to make a stand to protect my mother and support me in my duty to help mom. Again, thank you.Mike H.San Francisco Bay Area
You will have to make even more decisions that your mother will probably object to, but they will be for her own good.
One more suggestion which I had as an after thought. When you are served with the pleadings by the other party for an extension of the Restraining Order - When you file your Answer, include a CounterClaim, asking the Court for a Restraining Order against the other woman so that she will have to stay away from your mother. Since you cannot be with your mother 24 hours a day, you need to have some kind of judicial protection for your mother so that whatever good you and the Courts do for your mother is not undone by this woman coming around and trying to pressure your mother into doing things that she wants. For example, even if she will no longer have a Power of Attorney to dig into your mother's bank accounts, she must be made to stay away from your mother so that she does not take your mother to the bank and have your mother withdraw money from her account to give to her, or make out checks to give to this woman. The only way to accomplish this is to have a Restraining Order entered against her, prohibiting all contact with your mother - this would include personal contact, telephone calls, letters, email, through third parties, etc.
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Good morning Andrea,A little more advice, please. A few days after receiving your response, my mother's home and two neighbors' homes were broken into. This was during the day time, morning and of all things, my mother was home on the phone wth her sister. She heard glass shattering and the intruders smashed her french doors with a brick. She left her sister waiting on the phone while she investigated. She came into contact with one of the men and he ran out of her home. Mother never returned to the phone with her sister waiting but my aunt heard mother talking to herself, i imagine, in disbelief or not knowing what to do. My aunt called 911 as she lives about 90 minutes away. I didn't hear about this incident until yesterday. I felt so badly for mom and what she experienced and how she's processing this event in the last few days. I'm leaving for Los Angeles tomorrow to file for the Conservatorship in Superior Court. While at their website, I located my case, HAASJES VS. HAASJES, scheduled for this coming tuesday @ 8:30am. It states, "OSC-Temporary Restraining Order - Continued - all orders remain ff&e."Remember that I haven't been served with this TRO. Should I just show up and explain what's going on with this friend of my disabled mother and respond with the information that you've provide? Or, should I just stay away from that hearing as I really haven't been officially apprised of the meeting?I'm also surprised that my mother's friend filed the order under 'domestic violence,' and not under an 'elder abuse' restraining order. I still feel that if she really did have concerns about my mother's well being, why she didn't file a report with APS as I did so they may investigate any 'domestic violence.' So, those are my new questions and I hope that you may answer them today so I may plan my trip to Los Angeles tomorrow. I'll pay you later in the day for your assistance.Please advise.Michael Haasjes
Hi, Michael, and Happy New Year
I'm sorry to hear that your mother's house has been broken into, it must have been very frightening for her. I wouldn't be surprised if the other woman had something to do with it.
I'm glad that you are filing for Conservatorship of your mother. Ask for a Restraining Order as one of your claims for relief. I am not sure if the Judge hearing your Petition will have subject matter jurisdiction to grant the Restraining Order, but you have nothing to lose.
With reference to the continuance, when a case is continued, it is taken off the list, therefore, if you appear in Court, the file will not be there. I would strongly suggest, however, that you go to the Office of the Court Clerk and ask to see the file. Look at everything, but the most important thing you will be looking for is an "Affidavit of Service" wherein the affiant swears that you were served and states how you were served. Ask the Clerk for a copy of the Pleadings, the Affidavit of Service, and anything else you see in the file that might be relevant. Since you were never served, file your Answer now and state in the Answer that you were never served with the pleadings, or with anything else. Also include the Counterclaim that I mentioned before and ask for a Restraining Order against the woman who has been controlling your mother and file your Answer with the Court so that at the hearing you can bring up everything you raised in your Answer and in your Counterclaim.
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Andrea,Thanks for the information that I need to deal with my situation. Just a little clarification. You've answered that I won't attend the 'continuance,' hearing on Tuesday. While I'm filing for the Estate Conservatorship, for my mother and brother, I will include my Answer to the Court regarding the affidavit of sevice, never receiving the pleadings, my counterclaim and the RO against my mother's friend. All of this being included with the Conservatorship petition, would you confirm this?...and finally, just was apprised an hour ago that my mother's friend has spent the monies that my brother and I received from the Netherlands. All of it is gone and spent on paying off a home improvement Loan on a home that is in Foreclosure. She made that decision for my mother and brother. Those monies come from my father's side of the famlly and she has no right to decide what to do with it. Can I recoup damages for him once I have Conservatorship? The money that we've lost over time is staggering because of her involvement. Can I utilize Small Claims court or civil court for the aggregate losses?Thank you so much for your assistance. I'm going to the bank now.Michael Haasjes
I apologize if my Answer was confusing.
We are dealing withXXXXXcases. First, Case 1 is the case in which an application is being made for an extension of the Restraining Order; Second, Case 2 is the case you will be filing for Conservatorship.
Case 1
You stated that you had not been served with the Complaint/Petition in Case 1. Without being served, you would have no way of filing an Answer to refute any allegations it contained. Looking at the case caption that you mentioned, Haasjes vs. Haasjes, the other woman knew that she had no standing to request a Restraining Order on behalf of your mother against you, and she wanted to keep herself out of the picture, so she had your mother named as the Plaintiff in that case, making it appear that she was acting alone in her request for a Restraining Order.
When a party is named as a defendant in a case, the Rules of Procedure require that the person be served with the Complaint/Petition. Once the defendant is served, the person who served the defendant must file an Affidavit of Service stating on what date he/she served the defendant, the method of service -In person, or by mail - and the address at which the defendant was served.
I asked you to look in that file so that you could request copies of certain things. You need a copy of the Petition/Complaint so that you can file an Answer in that case. You need a copy of the Affidavit of Service so that you can see who is lying about having served you and that fact should also be included in your Answer in that case.
Case 2
You will be filing for conservatorship. You should include the fact that the other woman has been manipulating your mother and has used your mother's money for her own personal gain. I had said in my previous Answer that you should ask for a Restraining Order against this woman, but I do not know whether it will be granted because of subject matter jurisdiction and also because she is not named as a party anywhere.
Regarding your question of bringing actions against this woman in Small Claims Court, you stated that this woman has taken a great deal of money from your mother. All amounts of money that this woman took from your mother would have to be claimed in one action. You could not bring, for example, 6 different actions in Small Claims Court against this woman arising from the same wrongdoing. Therefore, You would be going over the jurisdictional limit of Small Claims Court and you would be recovering only a fraction of what this woman has stolen from your mother.
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