Technically speaking, when the average citizen threatens violence, they are committing a crime, and the threatened person is entitled to an Order of Protection. In practice, based on my experience as an elder abuse social worker, where some of the abusers were non-relatives, criminal court will not issue an OOP unless actual damage has already been done.
In the case of family members, Family Court is an option, and Family Court is far more disposed towards issuing an OOP as a preventative measure when threats have been received.
Chas E could, for example, get an OOP against his abusive sister. It would not get her into any trouble until and unless she violates it, but if she does violate it, she is arrestible long after the fact (e.g., hours after she quits waving sharp knives around or making threats of violence) for having violated the OOP. In most states, as a result of spousal abuse issues, the system takes over at that point, i.e., charges are pressed automatically, but it would still be up to witnesses to testify. Family Court judges rely on their own (often overly lenient) judgment but tend to escalate the penalties rapidly for repetitive violations.
In my opinion, Criminal Court needs to make better provisions for being able to obtain an OOP against one's abusive neighbors and other non-relatives. I do not mean to claim that the criminal justice provides perfect and universally adequate protection. But, by God, let's have some equal protection under the law here, and if the laws need fixing, fix them for everyone. If Derleth wants violent people locked up forever unless they agree to being shot up with Prolixin, he should get mandatory sentencing laws for violent crimes enacted, but don't single us out for having a psychiatric diagnosis.
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So who decides when a person should have a competency hearing?
IANAL, but I believe anyone can make an application regarding anyone else, alleging incompetence; they may also be able to apply to be guardian themselves, or, if there is no connection to the person involved, prompt the state to pursue the possibility itself. Any attorneys visiting this thread, please consider yourself invited to clarify and correct as need be.
The most common targets are folks' parents or grandparents in situations where the elder person does not wish to turn over control of the finances / keys to the car / ownership of the family business and the younger person either believes the elder is no longer capable of assessing situations and making choices or else thinks when parents get old they oughta at least hand over the goodies and get out of the way, if they going to insist on refraining from dying like old folks should.
The job of the court is to distinguish between these situations and determine whether the allegedly incompetent person is indeed incapable of coping with life's situations and decision-making opportunities.
Original SDMB thread - Dear Sister, please take your lithium
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