Competency of a party may also be an issue in proceedings to obtain an annulment. Accordingly, a marriage can later be annulled where there is a showing that at least one of the parties was incompetent. Just as a third-party may move for a court to order a guardian ad litem or conservator, certain third parties can also bring annulments.
Some children for example may choose to bring a nullity action after their parent has died, when the new marriage results in that child being cut off from the inheritance. We also offer free wills to all of our family law clients during the process of their divorce. Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results. While this post may detail general legal issues, it is not legal advice.
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In July , the probate court removed Ann Priess Fiedler from her position as conservator of the person of Alfred W. Priess, her father, after concluding she had shown a continued failure to perform the duties of conservator. The court also concluded Alfred should be returned to Mississippi to live with George Priess, Alfred's son and Ann's brother, with whom Alfred had been living since We find no error and affirm the probate court's order. In late or early , Ann facilitated Alfred's move from his home in Palos Verdes to a nursing home in Newport Beach.
Alfred was 83 years old. They drove Alfred to Mississippi, where George lived. Ann filed a petition seeking appointment as conservator of Alfred's person. The petition alleged Alfred suffered from dementia and required assistance with the activities of daily living and medication compliance. In late February , the court appointed Ann temporary conservator, and issued a temporary restraining order prohibiting George and Jeffrey from removing Alfred from California.
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In April , Alfred's court-appointed counsel reported George had filed a petition for conservatorship in Mississippi the previous month. The Mississippi court dismissed the petition for lack of jurisdiction because the case had been filed in California first. In June , the probate court appointed Ann as permanent conservator of Alfred's person. The court found Alfred lacked capacity to give informed consent to any medical treatment. The court also ordered Ann to file a care plan within 60 days.
The subsequent letters of conservatorship gave Ann the exclusive authority to give consent for, and to require, Alfred to receive medical treatment. Ann did not initiate legal proceedings in Mississippi or seek assistance from the court in getting Alfred returned to California.
In February , Ann petitioned to be appointed conservator of Alfred's estate. George opposed the petition. The court ordered the parties to jointly select a psychologist to conduct a neuropsychological examination of Alfred, pursuant to Evidence Code section The issue to be determined was Alfred's competency, including his competence to obtain and direct legal counsel.
The resulting expert report concluded Alfred suffered from profound dementia, he lacked capacity to retain or work with counsel, and he also lacked the ability to manage his financial or personal care. Eventually, the parties agreed to the appointment of a private professional fiduciary to serve as conservator of Alfred's estate. In April , Ann made an unannounced trip to visit Alfred in Mississippi.
According to Ann, she was alarmed at Alfred's physical condition. On the three previous occasions Ann saw Alfred between and , he appeared to be in good health and well-cared for. But this time, Ann reported that Alfred was unshaven, unclean, and wore dirty clothes. He was barely able to walk and appeared to be home alone. Without notifying anyone, Ann immediately took Alfred from George's home and flew him back to California.
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She placed him in a board and care facility within days of his return. Soon thereafter, George petitioned the court to remove Ann as conservator of Alfred's person. George requested that the court appoint a temporary conservator, and allow Alfred to return to George's home in Mississippi. George submitted a declaration from Alfred's treating physician in Mississippi.
The physician declared he had treated Alfred since February , and he had seen a "dramatic positive turn around" in Alfred. The physician further declared Ann had never contacted him to find out about Alfred's medications, or whether it was safe for Alfred to fly. Ann opposed the petition seeking her removal as conservator. Ann contended it was necessary for her to remove Alfred from Mississippi and place him in a board and care facility. She alleged that in Mississippi, she found Alfred "uncared for, for hours at a time, wearing soiled clothing, with sores on his legs, and living in a residence that required him to negotiate stairs, which he could not do without assistance.
Alfred's court-appointed attorney concluded Ann's removal of Alfred from Mississippi was not in his best interests.
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The attorney reported:. Alfred's attorney further recommended that a temporary conservator should determine the appropriateness of returning Alfred to Mississippi to live with George. The court temporarily suspended Ann as conservator of George's person and appointed the conservator of Alfred's estate, Matejic, as temporary conservator of his person.
The court set the removal petition for an evidentiary hearing, and advised the parties the court would also consider the issue of whether Alfred should reside in Mississippi, or whether Ann should have the authority to change his residence to California. The court held a two-day hearing in June George testified he had installed handrails inside his home so that Alfred could navigate the space safely.
He indicated Alfred's health had improved since ; at one point Alfred was walking several miles each day, but stopped in due to extreme southern heat. Alfred lived with George, George's wife, and their son. A nurse from a homecare agency visited the house once each week. A memory therapist also worked with Alfred on a regular basis. George testified that he helped Alfred with bathing and taking medicine. He changed Alfred's adult diapers, changed his clothes, and fed him breakfast each day.
The Evolution of Probate Code 21350 to 21380
George had hired a neighbor to care for Alfred while he and his wife were at work. George denied that he had ever prevented Ann from calling Alfred, and denied that she had ever sent a card or letter to Alfred. According to George, on the day that Ann took Alfred away, the neighbor caring for Alfred left the house on an errand, but George's adult son was home.
In advance of the trial, Matejic filed a report with the court. She concluded that while Alfred was being well-cared for in the residential facility, he would benefit from living in a home with family members in a community rather than living with strangers. She noted Mississippi adult protective services had found no evidence of abuse or neglect during an investigation.
San Francisco Probate Attorney: Probate Code Section 21350 and 21380
At the trial, Matejic testified she had suggested that Ann hire someone to visit Alfred and check on him. She also told Ann she needed court permission to give Ann money from the estate to hire an attorney to help get Alfred returned to California. In addition, Matejic suggested that Ann communicate with Alfred's physician in Mississippi, and contact the Mississippi department of social services to have someone check on Alfred.
Consistent with her report, Matejic indicated she believed it was in Alfred's best interests for him to be returned to George's home in Mississippi. Ann testified she had seen her father four times after George took him to Mississippi, including the April visit when she took him back to California. Two of the occasions were related to legal proceedings.
She did not know that a nurse was seeing Alfred once a week in Mississippi, and she was only vaguely aware that a speech and language pathologist was working with him.