Posted on 04/17/2020 4:45:54 AM PDT by LouAvul
My FIL was adjudicated mentally incompetent to handle his own affairs and to care for himself. He was seriously incapacitated from years of hard drinking. He'd start drinking beer in the morning and progress to Crown Royal at night until he'd pass out.
A drinking buddy came into his house and found him in the tub unable to get out. He was transported to the ER and hit DTs that night. He hallucinated for a couple of days, but clearly was suffering dementia after that.
He's been in a lockdown unit nursing home ever since but has recovered a lot. Now, and the Trustee of his estate feels he's improved enough to move back to his home.
Anyway, IIRC, the lawyer that set up the trust said something about having to take written certification from physician(s) (that he was well) before a judge in order to get the initial mental incapacity ruling reversed.
I ask, because I get the feeling that the trustee thinks she can just check him out and return him to his former self-destructive lifestyle.
Anybody been through this?
It's Oklahoma.
I’ll pray for all concerned. God bless.
The only advice I can give is get yourself a damn good lawyer who would,in turn,get damn good physicians involved.
PM me via email through free republic. He is your FIL. What is your goal? Not to send him home or have him out of the SNF.
A lot of brain capacity returns when people sober up if they have the mental capacity and will to stay sober. Some folks have used antabuse to get started.
BTW, I used to drink too much. Can't believe how great life is when you are a non-drinker.
As much as I used to love drinking, some people just can't enjoy that lifestyle without overdoing it.
Who is his guardian? Is that the trustee?
If yes the trustee CAN make that decision. We had a similar situation with an aunt. I was the conservator—I was in charge of the money. My wife was the guardian, responsible for her well being. She had the sole legal authority to have her committed, or released.
There are a ton of questions to ask....but not relevant for this forum.
There is no guardianship in this case. It’s just the trustee making pertinent decisions.
I should say, it’s the trustee making pertinent decisions (as prescribed by my FIL in the original trust).
But you can never leave."
Then, yup...it looks like they can make the decision.
I understand it’s difficult. But, your wife and you will just have to sit and “watch.”
I am not familiar with the trust set up, and in MA these things are not handled through trusts—those are financial tools. A durable Power of Attorney would be the tool here to make all decisions on behalf of the person. This would be combined with a Healthcare Proxy for medical issues.
In MASS is you are committed to a rehab, after three days is you are deemed competent, you can check yourself out.
In that case, your FIL can just sign himself out. If no court ordered a guardianship, he can take control of his affairs at his own discretion UNLESS someone, an “interested party” petitions the court to declare him incompetent.
The functions of trustee and guardian are distinct. Trustee runs the money, guardian of the person is more likely to be able to check him in or out of a facility. If there’s a need for guardianship, hire a really good Oklahoma probate/guardianship attorney.
That's why he's in a lock down unit. He kept leaving, but they brought him back.
imho the hospital probably had a social work office and case worker who should have made a determination that the FIL was unable to care for himself and so needed 24/7 care, such as the nursing home that he went to.
wherever the FIL goes to, he would need that level of care, unless a doctor saw him and declared him mentally competent.
The medical power of attorney in the will package, whoever that is, can usually make the decisions when and where to move the FIL.
In cases where there are revokable trusts, if you are talking about revokable trust trustees, all kinds of things can happen, because money is involved.
If a dispute occurs between sibling offspring, it can be over control of the FIL since if one person acts unilaterally then it puts the trust and trustee financial control in jepoardy (the FIL can be induced to sign a superceding revokable trust since he has been declared lucid by a doctor, or even sometimes without a doctor, just an unscrupulous family lawyer).
the person holding the electronic checkbook often “wins.”
formal legal conflicts if naturally followed lead to complaints being lodged with the local police who contact the county Adult Protective Services. The county Adult Protective Services direct police to investigate whether elderly abuse has occurred. A report is written and if serious allegations are uncovered, charges are filed with the local DA against the person who allegedly took advantage of the FIL.
Regardless, conflicts between siblings if not resolved privately usually land in the local family law court. These courts are often corrupted by unscrupulous judges who make prearranged deals with unscrupulous lawyers and unscrupulous nursing homes. The scam is to take the parent and his or her revocable trust away from all of the siblings who are declared by the judge to be hopelessly deadlocked in squabbling. The FIL is locked away into a nursing home with only intermittent sibling visits permitted. Control of the medical decision making and the revocable trust is transferred to an administrator, usually an unscrupulous lawyer or someone under the control of an unscrupulous lawyer. These guys then hide the FIL in an unnamed nursing home in an unnamed location, charge the revocable trust for all costs, and are answerable only to the judge, not to any of the siblings or other revocable trustees.
If you are in this situation, it might be best to see an honest family lawyer (not necessarily the most successful family lawyer btw), ad be very wary of doing anything or talking to anyone (you might go to jail and the FIL end up committed to an administrator under the family court system).
Other family members often have little family law experience, or just enough family law experience (eg divorce) such that they would stubbornly dig in and the unintended consequence is that the parent is lost to everyone forever, essentially jailed and denied humane care while the judges and lawyers bleed his or her revokable trust dry.
This is, by the way, a nation wide scandal that receives little attention from the press.
sorry for your situation.
In Oklahoma, typically, as long as dementia is minor or nonexistent, a person in the beginning stages of a dementia-causing disorder will be deemed mentally competent in the eyes of the law. But there are fine lines with that as determination level is up to the state, not the family.
Getting a lawyer is good. But you can also get professional assistance from the Alzheimer’s Association Oklahoma Chapter at their 24/7 HELPLINE 800-272-3900 to get started. They would know the state laws and could better brief you on your possibilities with the experience they have and can possibly recommend that good lawyer they have worked with prior.
If you wish to check out their site:
rwood
Be careful with the insurance situation. I’ve heard that if you leave voluntarily they won’t take you back in the home. Hope this is changed for this crisis.
Prayers for your FIL and family.
Is there noticeable improvement?
Is he now showing signs he can take care of himself and not relapse?
If there is clear improvement a reassessment would be in order. The issue will be if he leaves will he relapse.
If he's better but there are indications he will just return to his old habits it would be difficult to have him released.
If a physician can declare him mentally competent then he can check himself out and go home
Holding someone against their will without a court order is known as kidnapping. I am a nurse and have personally held a door open for someone demanding to leave.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.