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Protection of Elders from Involuntary Mental Status Examinations

On Behalf of | Mar 13, 2018 | Trust Disputes

Buffington Law Firm’s team of Elder, Trust, and Undue Influence attorneys often deal with controversies involving the mental competence of Elders. (As used herein, the term “Elder” shall have the meaning set forth in the Welfare & Institutions Code: A California resident 65 or older.) It is very common in Trust and other forms of Elder litigation that one party or other will allege that another party, often an elderly person, lacks mental competence, i.e. the mental competence to execute testamentary documents or the competence to contract. While this may sometimes be a legitimate issue in litigation, sometimes this is a litigation tactic which, if successful, can be extremely intrusive and distressful to the subject Elder.

The centerpiece of this litigation tactic is sometimes an effort by the hostile party to compel an involuntary mental competence examination of the subject Elder. Needless to say, this can be an extremely distressing, let alone invasive and obtrusive, prospect. The notion that a free citizen of California can be compelled to put their legal rights at issue, and have their rights to privacy invaded in this fashion has troubling Constitutional dimensions, and the law in this area is often misunderstood by both Bench and Bar.

Consistent with basic Constitutional principles, California law explicitly establishes a legally rebuttable presumption that “…all persons have the capacity to make decisions and to be responsible for their acts or decisions.”  [Cal. Probate Code Section 810 (a)].  Even a person who has a mental and physical disorder may still be capable of contracting, making testamentary decisions, and other legal actions.  [Cal. Probate Code Seciton 810(b)].  

Absent some prior determination of mental infirmity, a party seeking to compel a mental examination must obtain the Court’s permission and order. This process is set forth in California Code of Civil Procedure Section 2032.310. This Section provides that a “…motion for an examination under [this section] shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination.” [Conservancy of G.H. (2014 227 Cal. App. 4th 1435, 1440-41]. This may occur only for “good cause shown.” [Cal. Code of Civ. Proc. 2032.320(d)].

California Courts rightly consider the “good cause” standard to be a very high standard. Indeed, they have held that the need must be “compelling.” The foregoing authority, in the opinion of Buffington Law Firm, leads to two important conclusions. Firstly, Courts should regard themselves as lacking the authority to sua sponte ordering a mental examination of an adult who has not already been adjudicated to be mentally unsound. Code of Civil Procedure Section 2032.310 speaks to an actual motion that the advocating party must bring. [Discussion supra, above.]. This implicates important due process rights for the responding party – the right to oppose the motion and present evidence against it. Secondly, we believe that the “good cause” standard is by binding precedent and basic Constitutional considerations, very high – so high that such motions should almost never be granted in cases where it is an opposing party, not the actual Elder, who seeks to put the Elder’s mental competence at issue. To invade this right to privacy, Courts have held that there must be a “compelling need” which is so strong as to outweigh the privacy right when these two competing interests are carefully balanced by the subject court. [Lantz v. Superior Court, 28 Cal. App. 4th 1839, 1853-55]. In practice, where the Elder him or herself has not put mental competence at issue, we believe that courts should almost never grant such motions.

If you have a Trust or Elder Law dispute, we encourage you to contact Buffington Law Firm for a free legal consultation.  You will speak directly to an experienced attorney, and the consultation is protected by attorney-client privilege.