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My mother is in the hospital and incapacitated. I filed for

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a conservatorshiptorship. I missed the...
My mother is in the hospital and incapacitated. I filed for a conservatorshiptorship. I missed the first hearing due to I bad directions to court. I want to withdraw my consent for the need for the conservatorship hearing. I am her MPOA. There is a PVP who is her court appointed attorney. There is a court appointed PI. The hearing is scheduled on the calendar for the end of the month.

Please give me a honest and consise, detailed answer as to how to do this. I hope you don't tell me to call the court.
Submitted: 6 years ago.Category: Estate Law
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Answered in 5 minutes by:
3/11/2011
Estate Lawyer: Jane Doe Deer, Attorney replied 6 years ago
Jane Doe Deer
Jane Doe Deer, Attorney
Category: Estate Law
Satisfied Customers: 3,896
Experience: Attorney since 1986; Adult Guardianship Experience
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Jane Doe Deer :

Could you please clarify what legal question it is that you want answered? This isn't a clear question, "Please give me a honest and consise, detailed answer as to how to do this." Do what?

I don't want to guess!

My best,

Jane Doe Deer :

Jane

Customer:

My mother is hospitalized and is deemed mentally incapacitated. I filed for a conservatorship. I am her MPOA with clause nominating me as her conservator should the need arise. The hearing was continued as I arrived late and was not able to attend.The PvP attorney already had requested for a continuance prior to the hearing.How can I I want to withdraw

Customer:

I want to withdraw my consent and the need for a conservatorship hearing. How can I do that?

Jane Doe Deer :

You should file a motion and set up a hearing asking the judge to close the case, and you shouuld provide a good reason for doing so.

A word of caution - if for some reason the investigator thinks that you're not the best person for the job as Attorney in Fact (AIF) under the POA, it's possible for the case to continue and someone else could be appointed as conservator/guardian. That's very unlikely, but I wanted to give you a heads up.

So, I'd write a motion and refer to an attached declaration or affidavit, which you will prepare with your reasons for wanting the dismissal. Make sure (to be polite) to coordinate the hearing date with anyone else involved who would be attending the hearing.

Does that help, or would you like some more information?

My best,

Jane Doe Deer

Customer:

I would like more information. I don't understand why I, the petioner cannot just say I withdraw my consent for a conservatorship hearing and withdraw my petition for such

Customer:

I am already my mother's medical power of attorney

Jane Doe Deer :

I'll be right with you in a moment. Thanks

Jane Doe Deer :

That's an excellent question. In most types of cases before the court, a petitioner can, indeed, withdraw a case. But in conservatorships, once you've opened the door, started the case, and involved a number of professionals, one of the professionals may convince the judge to keep the matter open.

Jane Doe Deer :

I have a lot of background in this arena.

Maybe we should back up. Do you want to discuss why you filed for the conservatorship to begin with? Is it because you only had powers for medical, and needed power for financial matters as well?

That's often the case, especially when a bank refuses to deal with someone without the proper paperwork - and they've gotten so rigid these days, it makes it hard for a child to help out an elderly parent.

Customer:

I filed because I overhead a conversation with the Nursing manager talking about my mom and the hospital was going to file for conservatorship over her. They are giving me a very hard time and they have made false allegations and are attacking me more than ever now. I fear that the court appointed PVP is trying to get the mpoa dissolved. Mom is intubated and he says she shook her head no 3 times after he asked her if she wants me to be in charge of her and to make her decisions for her

Customer:

I have sacrificed dearly taking care of my mother for the past 7 years and I don't want the court to interfere with the private agreement of the MPOA contract between mom and me. She signed it in 2006 , witness by a NP, when she had capacity.

Jane Doe Deer :

So it's turning into a big mess for you. I don't see the point in withdrawing your conservatorship petition if the hospital could just turn around and file its own, or manage to keep the one that you started open.

There are some court investigators around who are arrogant blankety blanks - I've run into some of them. You can also file a motion at a court to ask that the investigator be changed, but you'd have to convince the judge.

Keep in mind that the investigator just makes a recommendation to the court, and it's really, really unlikely that the court would appoint someone besides you as conservator.

If you can afford it, you can hire an attorney to represent you for the remainder of this matter. You may be able to get reimbursed from your mother's estate at the end.

Here's another thought, which is to arrange a meeting with the parties involved, and try to reach a resolution outside of the courtroom.

You can also get an evaluation of your mother from anyone, such as a psychologist, etc. If your mother is incapacitated, it doesn't really matter if she shakes her head yes or no, and that alone would never be a determining factor.

Jane Doe Deer :

I meant to say that the evaluation could be used as evidence in the court proceeding. I also want you to know that the judge's decision can be appealed.

Customer:

Mom has already been deemed incompetent according to a pychiatrist. That record is in her medical record. I don't have copy of it. Her attending told me about this. My mom is intubated presently. Mom only has small amt of social security. Next month hospital will take most of her money via med-cal and leave her only with $35.

Customer:

The hospital is pushing for a trach to be performed on mom. She has said she does not want it. So, now pulmonary dr is pushing, bioethice dr is pushing. The Attending dr is standing in fight for avoiding the trach

Customer:

I am fighting not to go against her wishes. The pulmonary dr has said my mom consented to have a trach to him, but she doesn't understand him

Jane Doe Deer :

OK, please, let me respond.

Jane Doe Deer :

Legally, only a court - not a doctor - can deem someone incompetent. In fact, in my state (WA), a court will not look at a medical report older than 30 days.

Since you have medical decision-making for your mother under the POA, you have the authority to stand in your mother's shoes and make all medical decisions.

I would bring what you just told me about the trach to the court's attention.

I would suggest continuing with the conservatorship, but I can't give you legal advice.

Jane Doe Deer :

Hello? I hope you're not typing book. This should be more conversational....

Customer:

Can the court take away my POA because the attorney says mom shook her head no 3 times to me making her decisions, and hospital doesn't know if I have her best interest at heart?

Jane Doe Deer :

No, that wouldn't be enough evidence. Your mother gave you POA while she still had the capacity to do so, and you have taken care of her for years. If I was the judge, that wouldn't be enough to convince me to make such a big change.

Jane Doe Deer :

Did your mother also prepare a living will? (Regarding her wishes about resuscitation and being kept alive by artificial means?)

Customer:

why do you suggest going on with the conservatorship? Will it open me up toliabilitties the allegations being made by the attorney and hospital?

Customer:

the MEdical POA has that information in it by defalut.

Jane Doe Deer :

Because if you dismiss it, as you said, the hospital may file for its own conservatorship (or just try to keep yours open). You'd have that hanging over your head forever.

Customer:

Does consrvatorship or public guardian override the MPOA tht I have?

Jane Doe Deer :

Yes. When a court orders imposition of a conservatorship or guardianship, part of the order invariably revokes any existing POA's.

Customer:

Can I hold on to the exsisting POA by not consenting to give court jurisdiction over it? And if they ignore that, can i still have POA during Interium if I appeal

Jane Doe Deer :

If this matter is already a court case, the judge, not you, has the "power." You don't give a court jurisdiction or not. The legislature and state constitution do that, along with court rules and case decisions.

You can continue to have the POA during an appeal only if a court agrees.

Are we going too far afield yet? Have you talked with the investigator - he or she should have interviewed you and other family members as part of the investigation. Did he or she TELL you that he or she was going to recommend something you're not going to like, or are you just worrying at this point?

Customer:

I spoke with both investigator and the court appointed attorney for my mother. They both said they can't recommend me as the hospital is pushing for a trach for finacial gain, and have made negative allegations on me accusing me of accessing my mother's funds for myself and abusing her financaily. Anything to damage me and get me out of the pix

Customer:

She's been hospitalized more than x 2 years now

Jane Doe Deer :

Do you have an attorney representing you? And I'm so very sorry.

Customer:

no. court attorn only for mom

Customer:

thank you. I luv mom. I'm trying to her

Jane Doe Deer :

Jane

Jane Doe Deer :

BTW, is there some reason you don't want your mother to have the trach? It may be in her best interest if she's having trouble breathing or in danger of pneumonia (I'm not a doctor, but I'm wonderinf if the hospital has some reason besides "financial" gain.

Does your mother's estate have money to pay for an attorney for you, or do you? Because it seems you are being pretty much overwhelmed by "the system."

Hugs,

Customer:

well. There is no money for attorn for me. Attending dr says trach will make mom suffer from unessac pain and suffering. She has been able to breathe well with assistance of bipap

Jane Doe Deer :

I just got a phone call. Will be right back in a few minutes.

Customer:

ok. I'll be waiting

Jane Doe Deer :

Sorry about that - couldn't get him off the phone!

You can get a written, signed and dated statement from the attending, and submit that to the court as evidence (put the case number XXXXX name of the case on anything you submit to the court). Keep copies.

Another thing - these conservatorship matters are hearings. If you can't get the case dismissed, ask for a trial. That will probably help get people around a table to reach a settlement.

Is there any way to transfer your mother to a nursing home and/or other hospital? Just a thought, you don't need to respond.

Customer:

No problem. You are forgiven.Is there a way to request a trial right now ? Or do you recommend filing a motion for dismissal first? I will learn how to file motion. If i file motion for dismissal will that prevent me from filing for a time extention for the hearing "?

Jane Doe Deer :

I'll give you a sample motion (no extra charge). It'll be written for something else entirely, and my expectation is that you will rewrite/revise it entirely for your own situation and use.

You can use one motion to file a motion for a continuance (postponement) and requesting a hearing to dismiss the matter. Support your motion with a declaration, and with as many declarations from other people as you can gather. Send copies to the investigator and any attorneys involved in this matter.

OK, the following is something I wrote long ago for someone else. Again, it's just an EXAMPLE.

I hope this works cutting and pasting in chat!


 


OK, first pull out your file of documents and find the most recent order or motion.


 


What you’re going to do is write a Motion for New Guardian And Increased Visitation [or whatever you want]


 


Come up with a form that looks somewhat similar to your previous documents – especially if you have one written by an attorney. The format is not that important, but do try to leave at least 4 inches on the top of the first page, and one inch margins all around. You can write it by hand if you need to, but print neatly.


 


Now, in your motion, you’d say something like this:


 


MOTION



[YOUR FULL NAME] moves this court for an order appointing a new GAL and for increased visititation. This motion is based on the following declaration [and any exhibits you may have, IF you have any evidence to present to the court].


 


DECLARATION




  1. I, [YOUR FULL NAME] am over 18 years old and otherwise competent to testify.


 



  1. This Court appointed Suzy Q as GAL on or about [date]


 



  1. I gave the GAL the names of three witnesses to contact on or about [date]


 



  1. The GAL told me that she had not interviewed any of my witnesses.


 



  1. It was important for the GAL to interview my witnesses because [list all reasons]


 



  1. I have had court-ordered visitation with my child [Date of Birth and initials, or name if that’s allowed in your state] since [date).


 



  1. The court ordered this visitation on [date] when my child was [number] years old.


 



  1. However, my ex-wife [name] has repeatedly prevented me from visitation with my child, apparently because [provide reason].


 



  1. I am also requesting increased visitation, based on my belief that [fill in].


 


10. Anything else you may want to say that would be important for the court to know.


 


The above statement is true and complete to the best of my knowledge and belief.


 


Signed Month, Date in [name of city], [state].


 


SIGN HERE


---------------------------


[YOUR PRINTED NAME]


 


Now, take this motion and any attached exhibits and make three or four copies (I always make extras). Mark the original as “original” (preferably in red) and mark the copies as “copy” (any color).


 


Go to the court with your calendar and cash, in case there is a charge and they don’t take checks or charge cards. Take the original and copies, of course. (If you are far away, you’ll have to call them and ask how to do this by mail) and get the clerk of the court to help you set up a hearing date and time for the court to consider your motion. Ask the court clerk if you need to provide the judge with a “bench copy,” and, if so, ask for the local instructions.


 


Now, mail a copy of both the notice of the hearing AND the motion with any attachments to the “other side.” This will be an attorney if your ex is still represented. Otherwise, just mail it to your ex. It’s safest to mail this to your ex by certified/return receipt mail so that you have a paper trail that you mailed it. You can even photocopy the envelope before mailing it, just in case there’s any doubt raised by the judge if your ex doesn’t attend the hearing.


 


Then, of course, be sure to attend the hearing and present your case.


 

Customer:

The hearing is scheduled for Mar 30. Should I also file a motion simutaneously for a court trial if motion is not dismissed?

Customer:

Thank you ghis is great work!

Jane Doe Deer :

You're welcome. I can't give you direct legal advice, such as the strategical question you're asking me.

(You mean if the case is not dismissed). I'd ask for a trial AT the hearing. Bring your calendar with you to court, just in case. There are also appeal rights for any decision you don't like.

BTW, is your mother's court-appointed attorney a person with whom you can communicate, or is he or she being a #%^@? (Can't use foul language here, lol).

Customer:

He's being a you know what. He is argumentative and trickey

Jane Doe Deer :

Also, I hope you're already familiar with this website. It could be helpful: http://www.courtinfo.ca.gov/cgi-bin/shsearch.cgi?start=&proxycustom=&q=conservator&x=34&y=14

There's this one, too: http://www.lawhelpcalifornia.org/CA/StateSubTopics.cfm/County/%20/City/%20/demoMode/%3D%201/Language/1/State/CA/TextOnly/N/ZipCode/%20/LoggedIn/0/iTopicID/830/sTopicImage/Seniors.gif/bAllState/0

Oh, there should also be a long-term care ombudsperson somewhere, who may be able to help you deal with the hospital in regards XXXXX XXXXX mother's care.

RE the atty, it may help to sit down with him. As I suggested, a meeting (prob at the hospital) with everyone involved may be very helpful. It's always better to argue with people when you're NOT in front of a court, and try to come to the court with an agreement with which everyone can live. Cheaper, too.

Customer:

Do you mean with the hospital administrators also? The pulmonary dr that refuses to meet with me because he said no need for discussions? I have letter in to administration now

Customer:

reqquesting for meeting with pulmonary dr or with admin

Jane Doe Deer :

Well, yes. I think you're on the right track. There should also be social workers at the hospital. Just keep in mind that anyone who works for the hospital works for the hospital, not you.

Jane Doe Deer :

I'm going to have to go pretty soon. I can switch your question over to "question and answer" instead of chat, in case you have some follow up questions after (I hope) you accept.

Should I do that?

Customer:

Admin has always refused to meet with me though. I know you have to go. This is not easy. My mom's life is at stake here, according to her Attend dr.

Jane Doe Deer :

I know. Unfortunately, doctors sometimes disagree with one another. I'm sure you want to do what is best for your mother. Right now, it sounds like the doctors' opinions differ from yours. Did you see what I asked about moving your mother?

Customer:

So would i request a meeting via mail to the parties and place proof of serv in court file?

Customer:

yes. Attend dr said her insurance ran out. no one will accept her with no insurance

Customer:

mom has no insurance no hospt will accept without

Jane Doe Deer :

Yes, I'd use the mail, so that you have a record that you are trying to resolve this. You can submit a copy of the letter to be filed in your court records, but it would make more sense if it was attached to something as a supporting piece of evidence, rather than alone.

Will a nursing home accept her, or does she need to be in a hospital?

Customer:

She is in Intensive care unit on life support. She is alert, awake , oriented. She lip sang worship song and communicates with me daily

Customer:

non verbal. endotrach tube is in her throat. Pul dr. refuses to keep his promise to attempt to wean her off the tube

Jane Doe Deer :

In some rare cases, a judge will agree to hold a hearing in a hospital room, with the patient present. Very rare. That's because a patient has the right to be present at the hearing. In a lot of cases, where someone is very sick, that's waived. You can try that with a motion, with good cause. But since she's incompetent to give testimony according to the psychiatrist, and because this is rarely used, I doubt a judge will agree to that.

I hope that I've answered your question with something better than "call the court!" Would you be so kind as to accept?

Jane

Customer:

Supporting evidence like actual letter I sent requesting meeting, notifying or dr's breach of contract?

Jane Doe Deer :

You can submit anything and everything that you think will help your position.

Do note that if this matter gets set for trial, you would have the right to discovery (request the hospital's relevant records) and vice versa.

Customer:

Thanks . I hope i didn't tire you out. you really made a difference for me today Jane

Jane Doe Deer :

You're very welcome. I'm here to help. Plus, my Dad died a couple of years ago at 97, and I was his main caregiver and AIF for years!

Customer:

You have a kind heart. I must finish my affidvit in response to the PI and Attorney's negative reports. I am resonding line upon line and givine them a joint response. Im sorry about the lose of your dad

Customer:

how do i save this? Push save then accept

Jane Doe Deer :

I actually don't know. Can you print it out?

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Estate Lawyer: Jane Doe Deer, Attorney replied 6 years ago

You may be able to print out the whole thing now.

 

Jane Doe Deer
Jane Doe Deer, Attorney
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Satisfied Customers: 3,896
Experience: Attorney since 1986; Adult Guardianship Experience
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