A Question of Competency
The other day I received a call from the daughter of a long-time client. Her mother had just entered the hospital and Mom wanted to make sure her estate planning documents were in order. She didn't have a power of attorney and wanted to execute one.
My client is an interesting person who originally retained me to help her adopt her sixty-year old daughter. Her story is fascinating and I was honored to work with her. For the sake of privacy, I'll call her Mary. I'll also change some of the facts just on the outside chance one or more of you may know her.
Mary is about 87 years old. She was as sharp as a tack and on top of everything when first we met. She told me how her daughter came into her life. Prior to World War II Mary was a missionary stationed in Asia. She arrived shortly before the Japanese invaded and ultimately found herself in the middle of a war.
She received her daughter as an infant after the baby's mother was killed in a bombing raid. Following the raid, when the planes had left and the bodies were counted, the baby's father brought the infant to the mission where he delivered the child to Mary's care. The custom in the country was that once a person accepted a child, the child was "adopted." There was no more formal procedure than that.
Mary stayed in the country while the fighting with Japan raged. She left just prior to Pearl Harbor and the United States' entry into the war. She left with the clothes on her back and without her daughter, whom Immigration would not allow into the country. The child's care was entrusted to another family but Mary was determined she would get her daughter back.
It took a private act of Congress and many years of perseverance. A bill allowing the child to enter the U.S. was introduced and passed on Mary's behalf so that her daughter, from whom the ravages of war had separated her for over 13 years, could once again join her. By the time the child was eligible to come to the United States, she was already a teenager. Although custom and usage said the child was Mary's, she wanted to formally adopt her in keeping with the laws of our country. But, as a teenager the child was entitled to have a say in the proceedings and she decided, after being influenced by other teenagers, to resist Mary's efforts. Mary continued, however, to raise the child as her own and to consider her to be her daughter and treated her as such.
The child grew into womanhood, got married, and raised a family. In the meantime, Mary got married as well. The women stayed close - as close as a mother and daughter would be. The child's children were Mary's grandchildren and each was an integral part of the other's family. The child's husband was a professional and their children were destined to become professionals also. Mary had a wonderful family and they were all close.
Aging gracefully together
The years passed and Mary and her husband aged gracefully together. The child became a grandmother and watched her family flourish. About two years ago Mary lost her husband, but she did not lose her strength of character and conviction she had developed over so many years. As Mary and her daughter thought about it, they wanted to finally legalize the bond between them. And that's when I first met Mary.
Mary asked that I handle her daughter's adoption. It was the first adult adoption I ever handled, and the story I told through pleadings and in court was one of strength and courage. Mary was, and is, an unusual person and it was my pleasure and privilege to represent her and bring to fruition what she had begun so many years before.
More recently, Mary entered the hospital through the emergency room because she was having difficulty breathing. As I said, she wanted to make certain that her estate planning documents were in order and she needed a power of attorney. So I packed my computer, grabbed a printer, and took my secretary with her notary seal to the hospital. I expected to find the Mary of years ago, sharp as a tack and on top of everything, but I didn't. Or did I?
She looked the same; she was still feisty and sharp. We held an interesting conversation and discussed her days as a missionary. We talked about her health and the fact that she was soon to return home. She told me about her grandchildren and her daughter. We talked a little about her husband and the fact that she misses him. And, every once in while a tear came to her eye and she got a faraway look. As we sat there, doctors came and went. They questioned her, listened to her lungs with a stethoscope, took her blood pressure and checked her temperature. She let them know that they were interrupting her and that she had business to transact.
Discussion over power of attorney
We started to discuss the documents and the importance of the power of attorney she was about to sign. She knew the date, the day of the week, the year, and the name of the president. She was oriented to time and place. In short, she clearly seemed to have the capacity necessary to execute a legal document. As we started to discuss the content of her power of attorney, yet another doctor entered the room. He introduced himself to Mary and said that he would like to talk with her for a moment or two.
He began by asking her if she knew where she was and how she came to be there. What day, month and year was it? Was she happy with the care she was receiving from the doctors and nurses? Did she have any complaints about the food or the orderlies? Then, he began to ask her if she was sleeping okay. Was anything happening in the evenings that disturbed her sleep? And as I sat there and listened to the give-and-take, the dialogue between the two of them, I realized for the first time that Mary had problems.
Mary began to tell the doctor, a psychiatrist, about her night hallucinations. She talked about her struggles with the staff as they woke her to poke, pull, or prod her. She talked about her roommates who came and went. She told him that she was suspicious of some people because they were overly interested in her and the papers she had with her. While none of these were actually happening they were real to Mary, not imaginary.
Until this doctor came into Mary's room and began to speak with her, I believed that she was as competent as anyone and certainly sharper for a person of her years than most I've met. And yet I saw that she was vulnerable, and at least for the moment, needed help. Was she able to execute the power of attorney I was in the process of preparing? Did she understand the nature of her acts, the property she owned and the power she would be bestowing upon another?
Was Mary capable of making sound decisions?
It was a question of competency. I had to determine whether Mary was capable of signing the document or whether I had to pack up and leave. I realized the doctor was still in the hall, and I went to speak with him. I explained to him why I was there. I told him I thought she was competent even though his examination clearly disclosed a problem. I asked him if, in his opinion, her problem could be related to the medications she was taking. Since she had been on the medications for a while, he thought that any adverse reactions, resulting in hallucinations, would have resolved themselves before the present time. But he did not think she was incompetent; rather, he thought she might have a psychiatric problem that could be treated.
As I've worked with senior citizens and their families, the issue of competence to sign a document has repeatedly been addressed. What I've learned is that a simple "mini-mental" examination is insufficient to truly determine one's capacity. For example, it's common to ask the subject the name of the president. But what if the person doesn't read the newspaper or watch television, what if the person doesn't care for politics and hasn't voted in 20 years? Maybe there's no reason to know the name of the president and failure to know the name is not an issue of competence. It's only when you spend time with an individual and engage in dialogue with the person that you can truly determine whether a person is or is not competent.
Ultimately, I prepared Mary's power of attorney and she signed it. I have no doubt she understood the nature of her act and everything that was important to what we were doing. At the same time, I learned a wonderful lesson. When that doctor came to speak with her, I saw in action what I had only read about or heard in seminars. You have to take your time and work with the "Marys" of the world to properly do your job. And there's a reward for the attorney who takes the time needed to properly evaluate the situation. The reward is satisfaction in knowing that you've done the job correctly and protected your client in the process.