Legal Question in Wills and Trusts in California

A physician declared under penalty of perjury under the laws of the State of California that my mother had dementia as defined in the Probate Code section 2356.5 and that she did not have the capacity to give informed consent to any form of medical treatment. My mother was adjudged to have dementia and a public guardian was appointed as her conservator by the Superior Court of Los Angele, California on 05/27/2011. A Tracheotomy surgery and a Percutaneous Endoscopic Gastrostomy were performed on my mother against her wishes, which resulted in unrecoverable mental and physical damages and led to her death on 06/13/2013.

My petition for my motherís successor conservator filed on 10/31/2012 was approved by the court on 12/10/2012. I was going to hire a board certified psychiatrist to assess if my mother had dementia but it was too late. My mother was again put on a ventilator in AC mode 24 hours a day due to negligence by her RT until she passed away on 06/13/2013.

I later found out that my mother was asked less than ten questions requiring only nod or shake of head through improper translation by a nurse of the hospital. I strongly doubt that the physician did not have at least two year's experience in diagnosing dementia. He could not provide me with information about when and how the assessment was performed while I have proof and witnesses that my mother did not have dementia and could answer questions by writing such as when, what, why, who and where when she was in the ICU of the hospital two year ago, not to say answering questions requiring only nod or shake of head.

Can I ask the court to void its declaration of my motherís incompetency if the physician can not prove that he had at least two year's experience in diagnosing dementia and that my mother had dementia as defined in the current edition of Diagnostic and Statistical Manual of Mental Disorders?

Asked on 7/20/13, 4:10 pm

1 Answer from Attorneys

William Christian Rodi Pollock

If your mother is now deceased, what difference would it now make? Is there some purpose in revisiting the determination at this time?

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Answered on 7/22/13, 1:49 pm

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