In re the Appointment of Thomas

Rabin, J. (dissenting in part),

I am concerned about the vacatur of the order of December 21 which declared the appellant to be an incompetent. It is abundantly apparent from the record that the appellant is incompetent, and to vacate the decree of incompeteney at this time would open the door to the possible abuses which we seek to guard against by incompeteney proceedings.

Exception is taken by the majority to the exclusion of medical testimony (concerning the period starting with June 14, 1965, the date the proceeding was begun) on behalf of the incompetent, bearing upon her physical and mental condition. That exclusion was in consequence of the alleged incompetent’s refusal to permit an examination by physicians selected by the petitioner. It would have been manifestly unfair to allow testimony in support of competency, and at the same time, because of her refusal to obey the order of the court, to keep the door virtually closed to medical testimony of incompeteney. Of course, if she was incompetent she may not be charged with “ responsibility for the acts of her attorney and her nephew tending to frustrate ” the court’s direction for such physical examination. However, if that were so, there is no injustice done by the finding of ineompeteney. On the other hand, if she were not incompetent, then she should be charged with failing to carry out the orders of the court.

It is quite apparent to me that there will never be any acquiescence, either by the alleged incompetent or by those who presently have her in their charge, to a medical examination.

Furthermore, I cannot see where there is any prejudice done to the appellant in letting the judgment of ineompeteney stand. If, indeed, she be competent, she can at any time, upon a.proper showing, bring a proceeding to establish that fact. To that end, I would modify the order here entered to make it without prejudice to her right to do so forthwith.

1 do not dissent to the vacatur of the committee appointed and the designation of a new committee. I can see some conflict of interest. However, I see no useful purpose in vacating the appointment of the present guardian ad litem and in the designation of a new guardian in his place. There is nothing in this record to indicate that, in the circumstances, he failed to properly discharge his duties.