Snickers® Bar Man

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Non Compos Mentis?

What does it take to evaluate someone to determine if they are competent to perform a particular legal task? Are they legally competent?

A True Story

A number of years ago, the daughter of a potential client called our office to see if we could assist her in managing her father’s financial matters. Her father had suffered a stroke. He couldn’t pay his bills or take care of his finances. She said he was still in the hospital; would I visit him and see what I could do? I agreed to visit him.

At the hospital, I was directed to his room. He was alone and sitting on the hospital bed upright with his legs crossed. I approached the end of the bed, explained who I was and why I had come to visit him. He looked at me with a stare and hardly any affect at all. In his right hand he held a half-eaten Snickers® bar. It was one of the extra large ones. And he was chewing as I spoke to him. But, he didn’t take another bite in my presence.  He just stared at me. For at least 20 minutes, I continued to speak and explain what my intentions were; no response.

Finally, I left and called the daughter from my office and explained the situation. She was disappointed.  I explained unless he could communicate, it would not be possible to assist him. I told her that stroke victims often recover their faculties over a period of time and offered to try again later.

Several weeks later, she called and told me that her father was doing much better. So, off I went and upon arrival at his house, I asked the daughter to depart and go for a cup of coffee so that I could speak with her father privately. She told me that he was paralyzed on his left side and she left. I went into the living room where her father was seated in a recliner. He seemed more animated and had facial expression but could not say a word. I thought this was a wasted trip and began to pack up to leave. Then I thought to ask if he could raise his right arm. He did. I asked if when questioning him, could he answer “yes” by raising the index finger of his right hand? Immediately, he responded by doing just that.  I then asked him if the answer was “no” would he be able to raise the first two fingers of his right hand to respond “no”. He then raised his index finger again.

At this point, in my classes, I ask the students if saying “yes” and not raising the first two fingers was indicative of his ability to comprehend what I was asking? They usually give a mixed response with some of them questioning his competence. At that point in class discussions, I explain the next step was to ask a series of questions with responses in which I knew the answer. Some of the questions like, “is it summer” were designed to elicit a “no”as it was in the middle of winter. He successfully answered each question reaffirming my belief that he was giving reasoned and accurate responses.

This prompted me to ask a series of questions which were tailored to get a “yes” or “no” answer and which would allow me to draft a power of attorney with his guidance. This took some time and creativity, but after about 45 minutes, I told him that it appeared I could draft the power of attorney for him. Then, I asked him if he would want to wait a month or so to see if his speech returned to do a Will instead of attempting it during this visit. At that point he raised the first two fingers of his right hand energetically and, while waiving it at me, uttered “UUUUnnnngggh” He did this with the enthusiasm that was unmistakable.

What We Can All Learn From This

When telling this story to my students, I ask, “Was he competent on my first visit?” their responses are mixed again, but most of them say he was not. I tell them that it is impossible to tell, as I had failed to find a way to break through the barrier which prevented him from engaging in speech. Had I thought to seek a response through eye blinks or finger gestures, I might have been able to accommodate him in that first visit.

Don’t misunderstand, if a client is incompetent, you may not proceed under that client’s guidance. Do not make the client’s problem your problem. If the opportunity was lost, it is lost. But, at the same time, be careful not to jump to conclusions. Check yourself to make sure that the client is not suffering from stoke induced malfunctions, hearing impairments, or simply cannot answer your questions because there is a logical basis for those inaccurate responses. For instance, someone in a hospital setting may not be able to tell you the date or what city they are in because they were brought to the emergency room unconscious; hence, they cannot tell you where they are currently located. Hearing impairments often create the impression that someone is not clear-headed. We use a head set and amplifier in our office for clients who appear to be hard of hearing. With amplification, often it is as if we are interviewing a totally different person.

Again, don’t proceed if the client does not comprehend the essence of the task you seek to complete. But make sure you explore all possible means of communication before making your final determination. And, don’t forget to take good contemporaneous notes in support of your position as you go forward to protect your client from successful challenges later. Enjoy the ride and be creative!

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