Should we open that door?
The answer is maybe! As a professor teaching estate planning students how to assess legal competence I frequently use as an example that I could train a monkey to open and close a specific door on command. I would argue that that monkey has LEGAL competence sufficient to comprehend that task and execute it knowingly. This would be at the far extreme of minimal complexity of a task.
Legal Competence Is The Issue
Why would I say that? And, for my students, this demonstrates the essence of the inquiry that they engage in when meeting with clients to prepare and execute their legal documents. They must be able to ascertain their client’s LEGAL competence for the task at hand. They must be able to do this to satisfy others who might challenge their client’s LEGAL capacity to render a document valid under the circumstances that their client met in undertaking that challenge. Each test depends on the complexity of the task. It will always be fact driven.
How Complex Is The Task At Hand?
Unlike the monkey in the example above, if a CEO were to engage in the merger of two international corporations, that would be an example at the other extreme of complexity. For the monkey, it is a simple understanding of the principle of a door secured in the closed position verses disengagement from that opening. For the CEO, it would likely require seeking the advice of legal counsel concerning all the steps required to satisfy the laws of each jurisdiction and international laws that might apply to sanction that merger. That merger would be a very complex transaction requiring a high level of reasoning to complete that task in a legally sufficient manner.
Distinguish Medical Analysis From A Legal Analysis
But, you need to be able to distinguish a MEDICAL/CLINICAL diagnosis of competence from LEGAL COMPETENCE. A lawyer is not qualified to diagnosis the range of mental afflictions and diseases which a medical patient may be experiencing. By the same token, a physician is not competent to assess someone’s legal competence to execute a valid Will. They are two separate things. The medical assessment is generally done in a vacuum where the physician seeks to establish competence as a function of memory and cognitive ability. The legal assessment is done in the context of a legal task – what is the legal action you seek to certify? Is the client’s memory and cognitive ability sufficient to complete the task in a legally sufficient manner?
It is very possible that a physician has determined that a patient is experiencing the early stages of vascular dementia and documents that in the patient’s medical record. Yet, at the same time, you might feel that the client is able to meet the legal standard to execute a Will. The doctor measures competence using various methods, including the Folstein Mini Mental Exam™ or even more extensive measuring devices. However, it is not uncommon for a physician to ask a patient if they know the date, day of the week, where they are located or the names of their loved ones. That examination tests an individual’s ability to answer questions to determine (among other things), if they are oriented to time, location, self and others. In the course of that examination (usually very cursory), a physician may conclude that the patient suffers from a cognitive impairment and make a note to that effect on the medical chart for that patient. Once diagnosed, a patient, who is advanced in years, may very well find that a certain inertia comes into play as others treating that person assume that the condition is permanent and inescapable. It is as if they cannot make informed decisions from thereon.
Attorneys need to be vigilant not to assume that their clients, diagnosed by a physician as incompetent, are also legally incompetent without their own independent assessment. I have found that many of those diagnosed as incompetent were legally competent. Some of the impairments which present themselves as medical afflictions do not impair the client’s ability to execute documents based upon that impairment. On other occasions, they had recovered from the incident which depressed their ability to communicate or express themselves. Or the original diagnosis missed a hearing impairment or other barrier to communication that the client was experiencing at the time of the test. This is particularly true with stroke victims. Virtually all of the tests that are described in the state statutes for legal competence boil down to a simple test – does the individual, given the facts and circumstances, fully comprehend the essence of what that act is attempting to accomplish? Do they know the who, what, when, where and how of the document at the time of executing that document?
If it is a Will, do they know what is at play? Do they understand the essence of that document? Can they describe, credibly, what they own? They don’t need to know their exact account balance – yet, if it is $3 million dollars, they need to be able to describe the accounts they hold and a rough approximation of what is in those accounts. They need to be able to identify the “natural objects of their bounty” in a way that tells you that they recognize who those individuals are with sufficient specificity that you are satisfied that they are fully aware of who those “objects” are. Stroke victims often have trouble being able to articulate words after a stroke. Even if they cannot say the names of their children, if they can describe their physical attributes, where they live, and how many children each of them have, may mean that their given names are not as critical to determine if they have sufficient legal competency to execute their Will. Years ago, we had a client who came to our office on three separate visits to try and execute his documents. He had four children and at different times he could describe up to three of them, but he could never identify all four on a single occasion. We were never able to execute his Will as he could not name or even describe ALL of the natural objects of his bounty. Unfortunately, competence is measured at the time of execution and he was just unable to meet the legal test.
By the same token, we had a client diagnosed by a psychologist to be suffering from “the early stages of dementia”. We found that our client was hearing impaired. And, using an amplifier, it was like he was a different person. We drafted and executed his Will. However, his Will was challenged later. And testimony from the psychologist concerning his earlier diagnosis was put into evidence; a diagnosis that predated the Will execution by two years. The Probate Court judge ruled that our client was not competent to execute the Will and that the Will should fail. On appeal, the matter was remanded by the Appellate Court with instructions to the Probate Court judge that competence is measured at the time of execution. That Tribunal explained that, although the earlier diagnosis was a fact to be considered, all the witnesses at trial who were present at the execution testified concerning his ability to understand all of the prerequisites for a valid Will. Therefore, they ruled that the Will was valid and the client prevailed in the end. They concluded that it was an abuse of discretion for the judge to ignore that testimony and not give it the weight it should have been given. But in the end, it was a fact and circumstance driven test.
So, when you evaluate your client’s for legal competence, don’t “monkey around” and assume earlier assessments by a physician or attorney are applicable in this instance. Don’t assume because they were unable to answer certain questions in the past that they still suffer from the same affliction without your own independent and critical analysis. And be sure to document all of the relevant facts that support your decision to go forward. However, if your client is not competent, don’t make your client’s problem your problem; don’t execute those documents. Unfortunately, for some, the opportunity has passed.