Mental Capacity

No legal document is valid unless the person signing it is mentally alert when (s)he signs. Thus, the attorney's assessment of the client's mental  capacity is vital.  Should there by an objective way to assess competency?  

Can a Client's Mental Capacity Be Determined by Statute?

This article addresses the practice demands of attorneys who work with aging clients. As the companion article indicates that the fastest-growing age group in the U.S. is comprised of persons age 85 and over, the problem of assessing a client’s mental capacity cuts across practice areas, especially affecting attorneys who draft documents. The problem may present with a prospective client we’re seeing for the first time or with a long-time client who’s now a senior. This article looks first at the extent of assistance existing Maryland law provides to attorneys faced with the dilemma of determining a client’s mental capacity, and then suggests alternative statutory revisions that would provide attorneys and judges with more assistance in this area.

Mental Competence, Mental Capacity, Mental Capability,
Mental Impairment???

Every estates and trusts attorney I know -- not being medically trained, of course -- has his or her own method of assessing mental capacity. Many of us use some version ? i.e., "our" version -- of the Mini-Mental Status Examination ("MMSE"), which involves asking the client such things as (1) what is the current year, (2) who is the president, (3) to spell "world" backwards, (4) to draw the face of a clock showing the time as 10:15, etc. However, I know no attorney who has had any formal training on administration of the MMSE or any other diagnostic tool that will help us decide the really difficult, marginal cases of mental impairment. Further, I've only met one attorney who keeps on retainer a physician specializing in neuropsychology, for how many of our clients’ health insurance will cover the sizeable medical charges for testing and evaluation. There is also the delicate issue of suggesting to a possibly impaired client that they should affirm and/or document the extent of their impairment.

The determination of a client’s mental capacity is even more difficult because (1) each situation is different and hence, done on a case-by-case basis, (2) competency is a sliding-scale or mutable vs. an all-or-nothing, static determination, and (3) the demands of private practice sometimes require us to reach a determination quickly and often without much thought. We want to provide quality services to such clients, but we don’t know exactly what to do and we don’t all do the same things; further, we must do something where doing nothing may be flirting with malpractice.

California’s "Legal Mental Capacity" Checklist

Enter the California "Legal Mental Capacity" statute, revised in 1998. Sec. 810 of this statute, titled "Unsound Mind or Incapacity," contains an 18-item list of "mental functions" which the attorney can use to comprise evidence to support "a determination that a person is of unsound mind or lacks the capacity to make a decision or do a certain act [which determination] ? shall be supported by evidence of a deficit in at least one of the following categories of mental functions" ? (1) alertness and attention, (2) information processing, (3) thought processes, and (4) ability to modulate mood and affect.

Each such category is subdivided further as follows: (1) deficits in alertness and attention are assessed via [a] level of arousal or consciousness, [b] orientation to time, place, person and situation, and [c] ability to attend and concentrate; (2) a deficit in information processing is demonstrated by [a] short- and long-term memory, including immediate recall, [b] ability to understand and communicate with others, [c] recognition of familiar objects and familiar persons, [d] ability to understand and appreciate quantities, [e] ability to reason using abstract concepts, [f] ability to plan, organize and carry out actions in one’s own rational self-interest, and [g] ability to reason logically; (3) deficits in thought processes are demonstrated by [a] severely disorganized thinking, [b] hallucinations, [c] delusions, and [d] uncontrollable, repetitive, or intrusive thoughts; while (4) deficits in the ability to modulate mood and affect are demonstrated by the presence of a pervasive and persistent or recurrent state of euphoria, anger, anxiety, fear, panic, etc., "that is inappropriate in degree to the individual’s circumstances."

The statute’s additional guidance provides that the attorney may consider a deficit in the above-listed mental functions only if the deficit "significantly impairs the person’s ability to understand and appreciate the consequences of his or her actions with regard to the type of act or decision in question."

With its checklist, California has sought to put all of its attorneys "on the same page" and to provide some standardization to the determination of a client’s mental capacity to execute documents and make decisions. Other states? statutes are much less detailed than California’s, but still provide varying degrees of statutory guidance to attorneys in this area, at a minimum, by defining "incapacitated" and "incompetent."

Where Is Maryland ?

Maryland ’s statutory scheme lags far behind the demographic trend of an aging America . Nowhere does the Maryland Code give any assistance in determining a client’s mental capacity to attorneys practicing outside of the practice of criminal law or the limited aspect of health law related to medical decision-making. In fact, outside of the cited areas, no definitions or guidance are provided. Notwithstanding differences in burdens of proof in civil and criminal proceedings, there is a great need for statutory guidance to aid attorneys who must make frequent and quick assessments of a client’s mental capacity.

The Md. Rules of Professional Conduct ("RPC") don’t help much either, requiring that when a client is "under a disability," the lawyer "shall, as far as reasonably possible, maintain a normal client-lawyer relationship." Query how one maintains a normal relationship "as far as reasonably possible" with a client who suffers with some degree of dementia or senility, especially when the "normal relationship" presumes competence"?

Conclusion

The provision of some objective determination of mental capacity is a task our legislators should address. They should hold hearings, take testimony ? medical and legal, and revise our statute for the protection of those of us in the legal profession and also for our clients.

 

The information presented in this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

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