Standing By Ella Part II: Presumption of Competency - Except in New York; Is Sotomayor's "Empathy" Appropriate on the Supreme Court?

Among the basic rights guaranteed to American citizens from centuries of common law going back to the Magna Carta, and enumerated in the United States Constitution, is presumption of innocence of any crime until guilt is proven. This applies in civil as well as in criminal matters.

Also, a person who is alleged to be mentally incompetent is considered to be competent under the law until compelling evidence - including medical and psychological evidence - is presented showing the opposite to be true.

Under our laws, celebrities such as Oprah Winfrey and Rush Limbaugh are spared attacks by people who could attempt to access their vast fortunes, or stifle their public voices, simply by filing a court petition alleging incompetence. Such actions could require perfectly competent people to spend months or even years fighting frivolous lawsuits.

Well, that's how it works if you are rich and famous.

But if you are a 92-year-old widow named Ella Winter from Menands, New York, who recently moved to Connecticut to spend the rest of your days living with your son and his family, the law may well be interpreted any way the court sees fit. This is not opinion, but an observable fact, based on actual events.

The law as many in the judiciary say it is supposed to be interpreted was NOT applied that way in the recent case of Nancy Patrick vs. M. Ella Winter filed in Albany Supreme Court January 20, 2009. (Please refer to my columns from Dec. 24, 2008, and June 6, 2009 for background.)

After Ella Winter - Mom - moved to Connecticut, to my home, and after she rescinded Power of Attorney from her daughter Nancy, she initiated several actions to secure her income. She moved her checking account from her bank in New York to her new bank in Connecticut, and she contacted the Social Security and government pension offices to have her monthly checks sent to her new address.

We had already been working to reconstruct Mom's medical history after her move to Connecticut. Mom has glaucoma so we set up appointment with an eye doctor, who immediately referred us to a glaucoma specialist and a retina specialist; we arranged for her to have a complete physical; and we scheduled a dental appointment.

We saw this as a natural and normal series of events, that any caregiver for an elderly person would do as a matter of course. We also sent form letters to Mom's doctors in New York asking that they provide us with duplicate sets of her records so her new doctors could review her history and find out exactly what had put Mom into Albany Medical Center in mid-December with an input diagnosis of Altered Mental Status.

Ella formally changed her address from New York to Connecticut on December 29, 2008, and contacted virtually every entity she had done business with in New York, alerting them to her permanent change of address. Ella Winter was, by the week after Christmas, 2008, in every way and form a resident of Connecticut.

Back in Menands, my sister and her family had begun emptying Ella's old apartment on Dec. 23, 2008, the day after Ella arrived in Connecticut, and had notified the apartment management and the utilities that Mom had permanently moved.

When my sister and brother-in-law brought Mom to my house on Dec. 22, 2008, I asked again about her diagnosis from the hospital and was told again that she had suffered from dehydration, fever and a high white blood cell count. There was no mention of any long term mental issues, and certainly no comment along the lines of "By the way, Mom has Alzheimer's, you may want to keep an eye on her."

My brother Wilson was scheduled to bring more of Mom's belongings to Connecticut on December 30, 2008, and the day before his trip I sent an email to my brother-in-law asking that they include Mom's checkbook. Mom was very upset about not having control over her own finances and brought the subject up several times a day. I figured the easiest way to resolve the issue was to simply have my sister give the checkbook back to Mom, and if necessary I could monitor her expenditures to make sure there were no overdrafts.

The response to my email was immediate and nasty. My sister emailed me back stating, among many other things, "As for the checkbook, the only way Mom will get a checkbook is to open an account at your bank in Hebron. I have been taking care of Mom's checkbook for the last four years, because she was incapable of balancing it. I have power of attorney and all of her checks have my name on them along with hers, so that I was able to pay her bills. I ... will send monthly the amount she feel (sic) she would like to live on as well as the amount you feel that it is costing you for her to live there."

When I showed that email to Mom, she was not a happy camper. The records from Albany Medical Center, which we would not receive for nearly four months, despite repeated requests and legal intervention, ultimately showed that Mom was treated only for an infection and hypokalemia. That is a potassium deficiency that can result in palpitations, muscle cramping, paralysis, nausea, abdominal cramping, delirium or hallucinations, and depression. The good news is that it can be corrected with adjustments to the diet, as has occurred with Ella.

There were a number of other issues with the email, specifically that Mom's checks did NOT have my sister's name on them, Mom was not suffering from dementia, and my sister's signature only appeared on a couple of checks written during the month of December when Mom was hospitalized. Mom took umbrage at the claim that my sister had been handling her finances for years because Mom supposedly couldn't do it herself.

We had already found that Mom's memory and her ability to do basic math were intact. Nonetheless, because of her glaucoma, Mom had difficulty balancing her checkbook because she couldn't see the checkbook, not because of any failure of her mathematical skills.

My wife resolved that problem by enlarging Mom's monthly bank statements on our copying machine, as well as the ledger pages from Mom's new checkbook. Simple process. Could have been done anywhere.

The hostility encountered when I tried to help Mom get her checkbook back, and the outrageous comments from my sister merely served to steel Mom's determination to retake control of her finances. When my brother arrived on the 30th without the checkbook, and my sister refused to send it to her a final time on January 1, Mom was ready to assert herself and she did.

The outcry from my sister and brother had many facets, but the one that caught my attention was something I learned years ago from my contact with police and prosecutors when I was a criminal justice reporter. The response was far out of proportion to the alleged injustice.

Mom had moved to Connecticut, she had wanted her finances near her home, and she wanted control over them. We had eliminated caffeine from Mom's diet after noontime, immediately improving her sleep habits and with a more balanced diet she was soon her normal self. When she had a few minutes to look around and assess her new situation, Mom took natural and normal steps to move her business affairs to her new address.

But when Mom notified my sister that she had rescinded Power of Attorney, the uproar was completely out of proportion. After a screeching incident, in which I finally hung up on my sister, my brother called and he too launched into invective and bombast.

He obviously had been coached by my sister, but it was the final comment to Mom that left an impression. "This isn't over." When Mom asked what he meant by that, my brother, who lives in Ocala, Florida on his horse farm, and had been trying unsuccessfully to institutionalize Mom for over three years, would not elaborate, but he did repeat the threat - "This isn't over."

In the following weeks the haranguing continued with one major obstacle immediately arising. My sister, in a voice mail that thanks to modern technology still resides in my Internet Provider's files, as well as my own computer files and several backup disks, declared that "not one stick" of furniture would be moved out of my mother's old apartment by anyone in New York and we would thus be stuck with the monthly rental of nearly $1,000.

She also declared that Mom could live on $40 per week! That is not a misprint. My sister said Mom could live on $40 per week, which is even more astounding when you consider that a weekly hair appointment is considered an absolute necessity by my mother, and it costs $25. Meaning Mom could live on $15 per week!

You really have to wonder what perpendicular universe a person lives in who actually believes anyone can exist on $15 per week.

I resolved the apartment issue by assembling a crew of my friends and family, five of us total, to finish storing Mom's belongings. What had taken the New York side of the family weeks, with only one room out of five completed, took us exactly two-and-a-half hours to complete on January 23rd.

However, unbeknownst to us, but knownst to the New Yorkers, was that a petition to undo all that Mom had accomplished in the previous weeks already had been filed in New York Supreme Court in Albany.

On Saturday evening, January 24th, just as we were sitting down to dinner, a process server appeared at my door in Connecticut with two sets of a lawsuit, one for me and one for Mom. He even required that Mom get up from the dinner table and appear to him personally so he could identify her and serve her personally.

That was lousy enough, but here is where it really sucks. First, the allegations were ridiculous. They claimed that: Mom suffered from and had been treated for dementia and Alzheimer's; that I was holding Mom at my house against her will; that Mom hadn't really signed the Power of Attorney forms, even though she had told this to my sister directly, but that I had forged them; and that Mom's mental state had deteriorated to such a low point that Mom shouldn't come to court to assist in her defense because she wouldn't be able to understand the proceedings.

The petition asked that Mom be declared incompetent and my sister be named as her guardian with total control over every facet of her life. My sister also wanted to "marshal" my mother's assets, and put them all in a bank account in my sister's name - and only my sister's name. They wanted Mom placed in an Alzheimer's facility, specifically Hawthorne Ridge in East Greenbush, New York.

Here is where it really goes downhill. A Supreme Court judge accepted the lawsuit even though it did not contain one shred of medical evidence to support its outrageous claims. Then, the lawyer who field the suit took a copy to Key Bank in Menands, New York where my mother had several accounts, and the bank froze all of her assets based on a false claim of incompetency - without a court order. That was January 20. Mom wouldn't see her money again until mid-April

We hired a lawyer, John "Jack" Casey of Troy, New York, who immediately filed a motion to dismiss the petition on jurisdictional grounds. Mom had long since been a permanent resident of Connecticut by the time the petition was filed, he noted, and the New York courts had no business hearing the case.

We amassed several affidavits, including one from Mom, her Connecticut lawyer, the witness to her Power of Attorney changes, and a letter from her doctor in Connecticut who had performed a mental acuity screening after the suit was filed. Out of a possible score of 30, with 21 indicating onset of mild dementia, Mom scored 28, showing that she was well in command of her faculties.

But in early February, Albany Supreme Court judge John Egan ruled against Mom, claiming that even if everyone else thought she was competent, he hadn't seen her, so therefore he couldn't make that determination. The report I received from the conference where that ruling was decided was that Judge Egan claimed he was just looking out for my mother.

Think about that while you watch the debate in Washington over Sonia Sotomayor's nomination to the US Supreme Court. Supposedly she will make her rulings based on "empathy" rather than a strict reading of the law.

Now go back to what Judge Egan did in New York Supreme Court. By law he was supposed to consider Mom competent, therefore when she changed her address in late December she knew what she was doing and she was no longer a resident of New York, and thus not subject to his rule.

But by deciding that he wanted to see for himself whether Mom was competent, Egan not only went outside the letter and spirit of the law, he put his ego in charge of the case. That one ruling would cost Mom tens of thousands of dollars in the next four months. Worse, it scared the hell out of her.

Two nights after I told Mom that the judge had rejected her jurisdictional claims and was forcing the case to go forward, we found her awake in the middle of the night, sitting up in her room with all the lights on.

She was terrified that Egan's ruling would result in thugs hired by my sister coming for her from New York, and dragging her back to an Alzheimer's ward. We tried our best to make her understand that the court couldn't do that, but Mom had only been to court once in her entire 92 years - to watch an attorney friend try a case. And she had been called one time for jury duty but was not selected. That was it.

She didn't understand legal nuances or the various avenues open to her. She only understood that a judge who should have willingly and with complete confidence in his abilities ruled that he did not have jurisdiction in her case, was ruling in favor of her daughter who was trying desperately to force Mom into an Alzheimer's ward. That ruling terrified her.

I don't care what reason was behind Judge Egan's decision. I don't care if he thought he absolutely was doing the best thing for my mother, rather than acting out of vanity or some other equally noxious reason. The result was the same, and in any case, not what the law intended.

He threw out a half-dozen affidavits from solid citizens including two lawyers, and a doctor, none of whom had any reason to lie or put their careers in jeopardy. He threw out Mom's affidavit too, and he terrified her by doing so. In the end, he found that what everyone else was saying was true, and that the allegations in my sister's lawsuit were baseless, "frivolous and vexatious" as Jack Casey put it.

But by then it cost her, and it cost her terribly. And in the long run I can't help but believe that it will cost the Albany court system too. Because as a result of Egan's actions, followed up by support from the Appellate Court, the credibility of that court system is shot. Its credibility no longer exists and the public can no longer look at any judge associated with this case with full expectations of lawful, impartial judgments.

I am well acquainted with the phrase "Vengeance is mine, sayeth the Lord." But I believe another applies equally well in this case. "What goes around comes around."

And I hope that sooner rather than later, every one of these "empathetic" New York judges who caused my mother so much pain, terror and most of her life savings, experience what she just went through, except a hundred-fold worse.

I hope they have sleepless nights with the lights on and fear in their eyes. I hope they all get inoperable ulcers that cause them unimaginable pain. And I hope it never gets any better for them.

Bitter? Not really. Just outraged.

Egos and empathy have no place in such matters. The case of Nancy Patrick versus her mother should show that clearly. But in New York Supreme Court in Albany, empathy and ego certainly appeared to be the driving factors in that case and it is certainly debatable that the rule of law was either ignored, or never learned, on the bench in that court.

Tomorrow: Standing by Ella, Part III. Competency Wins! Evaluate This!