Follow
Share

I hold a Durable Power of Attorney (NYS) on my elderly mom with Vascular Dementia (diagnosed verbally anyway by her PCP & Neurologist, but nothing down on paper yet).


My mom was involved in a personal injury lawsuit “before” her symptoms of dementia surfaced. Now that she does have symptoms of dementia (prior TIA’s and Strokes I believe is the cause) I do not want her going through the stress & anxiety of a legal deposition and/or trial witness and sitting in a room with lawyers for over two hours. I know that this will hurt her case but I don’t want to risk her health or lying under oath (maybe not purposefully lying but just not aware of her reasoning).


How can I get my mom declared as an incompetent witness with filing for Guardianship in a court if I already hold a Durable Power of Attorney with a large range of responsibilities.

This question has been closed for answers. Ask a New Question.
Find Care & Housing
Dollie,

I'm pulling your quote out of the "reply to" section and mainstreaming it; it's just so much more efficient to follow posts that way.  

You wrote:

"In the end, her lawyer said the defendants have a legal right to dipose the plaintiff and that my mom is not declared legally incompetent by a judge (not yet anyway) this is what I am looking into."

I haven't read court rules in decades, but that's probably true.   However, an attorney does need to factor into the dynamics the care and welfare of his client (your mother), and if a doctor will concede that it  could be not only confusing but distressing and harmful, that letter could be shared with defense counsel.  

I don't have access to online tools to check for case law on this issue, but attorneys do.  

Did some quick checking though and found some interesting hits:

https://www.google.com/search?ei=LOvzXdrpGJaltQbK4IHIBw&q=plaintiff%2C+testimony+of+dementia+paitents+++&oq=plaintiff%2C+testimony+of+dementia+paitents+++&gs_l=psy-ab.12...517470.530713..533967...4.0..0.142.4577.47j7......0....1..gws-wiz.......0i7i30j0i13j0i7i10i30j0i8i7i10i30j0i8i7i30j0i13i30j0i13i10i30j0i30j0i8i30j33i10j33i10i299.Ok_3OgWMQjI&ved=0ahUKEwjar9m5srPmAhWWUs0KHUpwAHkQ4dUDCAo#spf=1576267076246

This was one of the hits:

https://gartenlaw.com/articles-of-interest/deposing-an-incapacitated-person/

However, it's primarily Florida case law.
Helpful Answer (0)
Report
Dollie1974 Dec 13, 2019
Both her lawyer & defense attorney have the doctors letter.

they mentioned that “medically” incompetent doesn’t necessarily mean “legally” incompetent, which to me makes no sense at all.

asking my mom at this point any legal questions is like talking to a 2 year old.

I also see that it costs money to obtain guardianship (when actually I don’t need that bc I already have a durable power of attorney) and then get her declared legally incompetent which is another added stress on the both of us, I just don’t want to go that route either.

hopefully it will settle in mediation and I’m worrying for no reason.
(0)
Report
See 1 more reply
Rosered6, a guardian ad litem does differ from a Next Friend, at least in Michigan.    To the best of my recollection (as I haven't worked on these kinds of suits for decades), the NF is appointed only for a specific purpose in litigation.  As indicated, it was usually when a youngster needed an adult to "stand in his/her place" in litigation, often personal injury suits.   The youngster can't represent him/herself, so an adult (parent usually) "stood" in the child's place for the purpose of the litigation.

This is a good explanation of a Next Friend:

https://www.law.cornell.edu/wex/next_friend

There may be other broader uses but I'm not familiar with them.    A GAL has broader powers overall.

I have some vague recollection of GALs being involved when I worked for the Juvenile Court, but those memories (other than the horrors of the neglect situations) have mostly faded.
Helpful Answer (1)
Report

In my state, a guardian ad litem (probably equivalent to the "next friend" referred to by Garden Artist) can be appointed for an incompetent person for court proceedings, including personal injury suits. Ask your mom's lawyer about this possibility.
Helpful Answer (1)
Report
Dollie1974 Dec 13, 2019
I will, thank you
(0)
Report
The word is "depose," meaning to ask questions of a person at a deposition.
Helpful Answer (2)
Report
Dollie1974 Dec 12, 2019
Yes thank you for clearing that up, a typo on my part😊
(2)
Report
See 1 more reply
Dollie, I have never heard the word 'dipose', and it doesn't register on Google. If it was a mistype for 'dispose' it still doesn't make much sense. The defendants certainly can't 'dispose OF the plaintiff'. Ask some more questions.
Helpful Answer (0)
Report
anonymous912123 Dec 12, 2019
It is Deposed (questioned).
(1)
Report
See 2 more replies
Dollie, I assume your mother is the Plaintiff, i.e., the one who initiated the suit?   If so:

1.   Contact her attorney and explain the situation.  It's to her/his advantage as well not to have your mother testify.

2.    Ask about amending pleadings to create  "Next Friend" suit, i.e., you act as Next Friend on behalf of your mother, who's no longer capable of testifying.   I've only worked on these when parents have acted on behalf of young children, so I don't know if this is applicable or allowable under the local court rules where the suit was filed.

3.    Work with the attorney on obtaining medical records, although I'm sure they're already available.  That's one of the first tasks plaintiff attorneys undertake.   

4.    Ask also about getting updated medical records, especially from your mother's neurologist, to support a dementia diagnosis; defense counsel will likely demand that if your mother is to avoid deps and/or trial testimony.

I think you're wise to address this issue now.    Your attorney may recommend a settlement to avoid prolonging the litigation.    Many personal injury suits are settled out of court anyway, unless the attorneys are the tv attorneys who advertise and brag about their massively huge settlements.   

If so, you would also have to sign the Release forms on behalf of your mother.   Check the wording in the DPOA/POA to ensure that it allows you to do this.   And think about handling deposit of the check if you don't already have joint privileges on a checking account.
Helpful Answer (2)
Report
Dollie1974 Dec 12, 2019
Hi
thank you for your response.
I gave her attorney a letter from her dr stating she doesn’t have full capacity for a legal deposition already.
I also already have given a deposition (4 hours) bc I was a witness as well.
Im praying it goes to mediation with a fair settlement vs a trial.
I also have a Bank POA on her checking & savings account.
In the end, her lawyer said the defendants have a legal right to dipose the plaintiff and that my mom is not declared legally incompetent by a judge (not yet anyway) this is what I am looking into.
(1)
Report
If this was "diagnosed verbally" it may be in the doctor's notes. You can call her doc (if your mom has signed the Medical Information Release form naming you as a representative) and ask the doc if this info made it into the notes. If so you can request a copy of these notes and present them to your attorney if you need proof. If there is nothing in the notes, and your mom is resistant to going in for a cognitive test you can make an appointment (with even her GP) and tell her it's for something else and pass the doc a note requesting a cognitive test and also test for UTI, and they will do this. Then, if she has decline of any sort, it will be recorded officially. You could also tell a "therapeutic fib" to your mom that the court or attorneys are requiring a cognitive test before the deposition. FYI having durable PoA does not allow her doctors to discuss any of her medical info with you, she must sign that paper and name you on it. Ask for one at each of her of doctors' offices. Best of luck to you and your mom!
Helpful Answer (1)
Report
Dollie1974 Dec 12, 2019
Hi
thank you for your response.
my DPOA included medical matters and I also am her healthcare proxy and yes I’m a representative that she signed paperwork at doctors offices years ago.
the did physical & mental assessments in office (pcp & neuro) she didn’t do so well at all, also her brain wave test shows abnormalities, her CTScan & MRI show strokes and a lot of gray calcified matter in her brain too.
she doesn’t currently have a UTI but did once in the past and caused delirium (worse than the Dementia symptoms) but that went away after 10 days on antibiotics.
(0)
Report
Her lawyer should handle this sympathetically - isn't s/he doing? Or is it that your mother is pawing the ground, keen to get in there and sock it to them, only she doesn't realise how hard it could get?
Helpful Answer (1)
Report
Dollie1974 Dec 12, 2019
Hi
thank you for your response.
no, my mom doesn’t even know what a deposition is.
her lawyer just told me that the defendants have a legal right to dipose the plaintiff.
(0)
Report
Contact the attorney handling the case, ask them how to handle it. Does mom remember anything about the incident? You may not have a choice.

You could request the case be dropped, but then attorney fees would probably be charged to mom. But, better now before depositions and attorney court time. How long ago was this? Did mom file the suit?
Helpful Answer (1)
Report
Dollie1974 Dec 12, 2019
Hi,
thank you for your response.
My mom remembers the pain and getting injured but addresses, names, dates and specific details of how it happened...she does not.
the suit was filed over a year ago.
(0)
Report
See 1 more reply
This question has been closed for answers. Ask a New Question.
Ask a Question
Subscribe to
Our Newsletter