One of the most difficult documents to obtain in the conservatorship process is a capacity declaration. A capacity declaration is a document filled out by a doctor or a psychologist that goes into detail about the mental capabilities of the proposed conservatee.
Why is this document so important? While you may painstakingly know the problems your loved one is facing on a day-to-day basis, you are not likely a doctor or psychologist who can make a medical diagnosis on your loved one. Similarly, as the judge is not a medical professional who can make this decision, he or she will rely upon the completed capacity declaration of a medical professional to make a decision regarding the capacity of your loved one.
The capacity declaration covers a variety of areas regarding the mental capacity of the proposed conservatee. For example, does the proposed conservatee overact to external stimulus? Are they able to remember key details after a few minutes? Do they have an understanding of their current situation and location? In addition to the above listed questions, a capacity declaration is key to the court granting a conservator the power to make medical decisions or place the conservatee in a secured locked facility if they are a wander risk.
If you do not have a capacity declaration at the time the court considers the conservatorship petition, the court can still grant you a conservatorship over your loved one, but your powers may be extremely limited. As such, you need to work with a medical provider to get the capacity declaration completed and filed.
Often, medical professionals are leery of preparing a capacity declaration. This may occur because the proposed conservatee instructs their doctor to not prepare the document, the medical professional is simply too busy, or the medical professional may not know who you are and not trust the reason(s) for the request.
If you are having difficulty obtaining a capacity declaration, the court, in limited circumstances, can assist in obtaining the capacity declaration by ordering the medical practice to comply with the request for a declaration. Please understand that just because you have a capacity declaration, does not mean the court will automatically grant you the powers you are seeking as a conservator. The conservatee can still contest any of the conclusions of the medical professional and the court may only grant certain powers.
If you are running into issues with your conservatorship petition, it is recommended that you reach out to an experienced attorney who can help you with the conservatorship process. At Carmel & Naccasha, attorney Victor Herrera, can assist you with the conservatorship process.