Do I Need to Have a Physician Weigh In?
By elder law and estate planning attorney Rick Law. Founder and Managing Partner of the Estate Planning Center at Law Elder Law. West suburban Chicagoland’s senior advocates and legal counsel for families with loved ones who are afraid of losing everything due to the high cost of long term care. When establishing a case for guardianship, the physician should provide testimony as to the exact diagnosis of the alleged disabled person, including the effect that such a diagnosis has on the respondent’s cognitive functioning. At trial, if you are the one petitioning to be elected guardian, your counsel should elicit testimony from the physician as to the respondent’s prognosis or the permanency that the diagnosis has on the respondent’s cognitive functioning. This can be very important in early stages of Alzheimer’s disease when the disease may not be so easy to spot to the layperson. You should have your attorney speak to the physician regarding this issue prior to trial and should already know the answer that the physician will provide. If the physician concludes that the respondent is only partially incapable of making personal and financial decisions, the physician also must provide testimony as to which types of decisions the respondent can or cannot make. Lay witness testimony can substantiate the physician’s opinion. Before stating an opinion as to the respondent’s level of incompetency at trial, physicians should clearly establish and testify;
- as to the date(s) they evaluated the respondent,
- the length of time spent during the evaluation(s),
- whether they reviewed any medical records prior to the evaluation(s),
- whether they relied on the opinions of other medical professionals before formulating their opinion, and the types of questions that were asked of the respondent at the evaluation.