Legal Question in Elder Law in California

My 79 year old brother had an anyerism and suffered a stroke that severely disabled him both physically and mentally. His wife had him declared mentally incompetent and gained both power of attorney and legal guardianship.Three years have gone by and he's in fantastic physical shape and mentally has miraculously recovered and writes and communicates quite well. It takes a little longer to get the message to the mouth from the brain. But he does indeed get the message across. I hate to admit his memory is better than mine. The relationship between my brother and his wife has been estranged for a long time. They basically have lived separate lives. He says he doesn't belong, nor does he wish to remain, in his current environment and would like to go home, or possibly move closer to family. I spoke with his doctor, of over 30 years, who also thinks he should be home. But it seems to be more convenient for his wife to leave him where he is. She doesn't see him. Assistants at the facility take him for scheduled doctor visits. He has very few, if any, visitors since most of the family live outside the state. I have asked his wife if it could be possible to have my brother reevaluated. She stated she has done this. But there seem to be no records or knowledge of this having ever been done. Is there any way for me to help? Can the mentally imcompetent declaration be revoked? If so, how? Will this negate the power of attorney and guardianship rights of his spouse? What needs to be done to right a wrong.


Asked on 1/04/10, 9:39 am

1 Answer from Attorneys

Terry A. Nelson Nelson & Lawless

He'll have to bring a motion to end the guardianship, supported by doctor reports of current examination. If they say he is competent, then he will be released to do as he pleases. If he is serious about doing so, and if this is in SoCal courts, feel free to have him contact me to discuss the process and costs.

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Answered on 1/11/10, 10:36 am


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